chapter ii—merit systems protection merit systems protection board pt. 1201 (7) office of equal...

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Part CHAPTER LXI—National Labor Relations Board ..................... 7101

CHAPTER LXII—Equal Employment Opportunity Commission 7201

CHAPTER LXIII—Inter-American Foundation ......................... 7301

CHAPTER LXIV—Merit Systems Protection Board .................. 7401

CHAPTER LXV—Department of Housing and Urban Develop-ment ................................................................................... 7501

CHAPTER LXVI—National Archives and Records Administra-tion .................................................................................... 7601

CHAPTER LXVII—Institute of Museum and Library Services .. 7701

CHAPTER LXVIII—Commission on Civil Rights ....................... 7801

CHAPTER LXIX—Tennessee Valley Authority ......................... 7901

CHAPTER LXX—Court Services and Offender Supervision Agency for the District of Columbia .................................. 8001

CHAPTER LXXI—Consumer Product Safety Commission ........ 8101

CHAPTER LXXIII—Department of Agriculture ......................... 8301

CHAPTER LXXIV—Federal Mine Safety and Health Review Commission ........................................................................ 8401

CHAPTER LXXVI—Federal Retirement Thrift Investment Board .................................................................................. 8601

CHAPTER LXXVII—Office of Management and Budget ............. 8701

CHAPTER LXXX—Federal Housing Finance Agency ................ 9001

CHAPTER LXXXIII—Special Inspector General for Afghanistan Reconstruction ................................................................... 9301

CHAPTER LXXXIV—Bureau of Consumer Financial Protection 9401

CHAPTER LXXXVI—National Credit Union Administration ..... 9601

CHAPTER XCVII—Department of Homeland Security Human Resources Management System (Department of Home-land Security—Office of Personnel Management) .............. 9701

CHAPTER XCVIII—Council of the Inspectors General on Integ-rity and Efficiency ............................................................. 9800

CHAPTER XCIX—Military Compensation and Retirement Modernization Commission ................................................ 9901

CHAPTER C—National Council On Disability .......................... 10000

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CHAPTER II—MERIT SYSTEMS PROTECTION BOARD

SUBCHAPTER A—ORGANIZATION AND PROCEDURES

Part Page 1200 Board organization .................................................. 7 1201 Practices and procedures ........................................ 9 1202 Statutory Review Board ......................................... 62 1203 Procedures for review of rules and regulations of

the Office of Personnel Management ................... 62 1204 Availability of official information ........................ 66 1205 Privacy Act regulations .......................................... 72 1206 Open meetings ......................................................... 76 1207 Enforcement of nondiscrimination on the basis of

disability in programs or activities conducted by the Merit Systems Protection Board ................... 79

1208 Practices and procedures for appeals under the Uniformed Services Employment and Reemploy-ment Rights Act and the Veterans Employment Opportunities Act ................................................. 86

1209 Practices and procedures for appeals and stay re-quests of personnel actions allegedly based on whistleblowing or other protected activity ......... 91

1210 Practices and procedures for an appeal of a re-moval or transfer of a Senior Executive Service employee by the Secretary of the Department of Veterans Affairs ................................................... 97

1211–1214 [Reserved] 1215 Debt management ................................................... 103 1216 Testimony by MSPB employees relating to official

information and production of official records in legal proceedings .................................................. 110

1217–1299 [Reserved]


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SUBCHAPTER A—ORGANIZATION AND PROCEDURES

PART 1200—BOARD ORGANIZATION

Subpart A—General

Sec. 1200.1 Statement of purpose. 1200.2 Board members and duties. 1200.3 How the Board members make deci-

sions. 1200.4 Petition for rulemaking.

Subpart B—Offices of the Board

1200.10 Staff organization and functions.

SOURCE: 56 FR 41747, Aug. 23, 1991, unless otherwise noted.

Subpart A—General

AUTHORITY: 5 U.S.C. 1201 et seq.

§ 1200.1 Statement of purpose.

The Merit Systems Protection Board (the Board) is an independent Govern-ment agency that operates like a court. The Board was created to ensure that all Federal government agencies follow Federal merit systems practices. The Board does this by adjudicating Federal employee appeals of agency personnel actions, and by conducting special reviews and studies of Federal merit systems.

[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]

§ 1200.2 Board members and duties.

(a) The Board has three members whom the President appoints and the Senate confirms. Members of the Board serve seven-year terms.

(b) The President appoints, with the Senate’s consent, one member of the Board to serve as Chairman and chief executive officer of the Board. The President also appoints one member of the Board to serve as Vice Chairman. If the office of the Chairman is vacant or the Chairman cannot perform his or her duties, then the Vice Chairman performs the Chairman’s duties. If both the Chairman and the Vice Chairman cannot perform their duties, then the

remaining Board Member performs the Chairman’s duties.

[56 FR 41747, Aug. 23, 1991, as amended at 59 FR 65233, Dec. 19, 1994]

§ 1200.3 How the Board members make decisions.

(a) The three Board members make decisions in all cases by majority vote except in circumstances described in paragraphs (b) and (c) of this section or as otherwise provided by law.

(b) When due to a vacancy, recusal or other reasons, the Board members are unable to decide any case by majority vote, the decision, recommendation or order under review shall be deemed the final decision or order of the Board. The Chairman of the Board may direct the issuance of an order consistent with this paragraph.

(c) When due to a vacancy, recusal or other reasons, the Board members are unable to decide a matter in a case which does not involve a decision, rec-ommendation or order, the Chairman may direct referral of the matter to an administrative judge or other official for final disposition.

(d) Decisions and orders issued pursu-ant to paragraphs (b) and (c) of this section shall not be precedential.

(e) This section applies only when at least two Board members are in office.

[59 FR 39937, Aug. 5, 1994]

§ 1200.4 Petition for rulemaking. (a) Any interested person may peti-

tion the MSPB for the issuance, amendment, or repeal of a rule. For purposes of this regulation, a ‘‘rule’’ means a regulation contained in 5 CFR parts 1200 through 1216. Each petition shall:

(1) Be submitted to the Clerk of the Board, 1615 M Street NW., Washington, DC 20419;

(2) Set forth the text or substance of the rule or amendment proposed or specify the rule sought to be repealed;

(3) Explain the petitioner’s interest in the action sought; and

(4) Set forth all data and arguments available to the petitioner in support of the action sought.


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5 CFR Ch. II (1–1–16 Edition) § 1200.10

(b) No public procedures will be held on the petition before its disposition. If the MSPB finds that the petition con-tains adequate justification, a rule-making proceeding will be initiated or a final rule will be issued as appro-priate under the Administrative Proce-dure Act. If the Board finds that the petition does not contain adequate jus-tification, the petition will be denied by letter or other notice, with a brief statement of the ground for denial. The Board may consider new evidence at any time; however, repetitious peti-tions for rulemaking will not be con-sidered.

[77 FR 62363, Oct. 12, 2012]

Subpart B—Offices of the Board

AUTHORITY: 5 U.S.C. 1204 (h) and (j).

§ 1200.10 Staff organization and func-tions.

(a) The Board’s headquarters staff is organized into the following offices and divisions:

(1) Office of Regional Operations. (2) Office of the Administrative Law

Judge. (3) Office of Appeals Counsel. (4) Office of the Clerk of the Board. (5) Office of the General Counsel. (6) Office of Policy and Evaluation. (7) Office of Equal Employment Op-

portunity. (8) Office of Financial and Adminis-

trative Management. (9) Office of Information Resources

Management. (b) The principal functions of the

Board’s headquarters offices are as fol-lows:

(1) Office of Regional Operations. The Director, Office of Regional Oper-ations, manages the adjudicatory and administrative functions of the MSPB regional and field offices.

(2) Office of the Administrative Law Judge. The Administrative Law Judge hears Hatch Act cases, disciplinary ac-tion complaints brought by the Special Counsel, actions against administra-tive law judges, appeals of actions taken against MSPB employees, and other cases that the Board assigns.

(3) Office of Appeals Counsel. The Di-rector, Office of Appeals Counsel, pre-

pares proposed decisions that rec-ommend appropriate action by the Board in petition for review cases, original jurisdiction cases, and other cases assigned by the Board.

(4) Office of the Clerk of the Board. The Clerk of the Board enters petitions for review and other headquarters cases onto the Board’s docket and monitors their processing. The Clerk of the Board also does the following:

(i) Serves as the Board’s public infor-mation center, including providing in-formation on the status of cases, dis-tributing copies of Board decisions and publications, and operating the Board’s Library and on-line information serv-ices;

(ii) Manages the Board’s records, re-ports, legal research, and correspond-ence control programs; and

(iii) Answers requests under the Free-dom of Information and Privacy Acts at the Board’s headquarters, and an-swers other requests for information except those for which the Office of the General Counsel or the Office of Policy and Evaluation is responsible.

(5) Office of the General Counsel. The General Counsel provides legal advice to the Board and its headquarters and regional offices; represents the Board in court proceedings; prepares proposed decisions for the Board in cases that the Board assigns; coordinates legisla-tive policy and performs legislative li-aison; responds to requests for non-case related information from the White House, Congress, and the media; and plans and directs audits and investiga-tions.

(6) Office of Policy and Evaluation. The Director, Policy and Evaluation, car-ries out the Board’s statutory responsi-bility to conduct special reviews and studies of the civil service and other merit systems in the Executive Branch, as well as oversight reviews of the significant actions of the Office of Personnel Management. The office pre-pares the Board’s reports of these re-views and studies, submits them to the President and the Congress, and makes them available to other interested in-dividuals and organizations. The office is responsible for distributing the Board’s reports and for responding to requests for information or briefings concerning them.


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Merit Systems Protection Board Pt. 1201

(7) Office of Equal Employment Oppor-tunity. The Director, Office of Equal Employment Opportunity, manages the Board’s equal employment programs.

(8) Office of Financial and Administra-tive Management. The Office of Finan-cial and Administrative Management administers the budget, accounting, procurement, property management, physical security, and general services functions of the Board. It also develops and coordinates internal management programs and projects, including re-view of internal controls agencywide. It performs certain personnel func-tions, including policy, training, drug testing, and the Employee Assistance Program. It also administers the agen-cy’s cross-servicing arrangements with the U.S. Department of Treasury’s Bu-reau of Public Debt for accounting services and with the U.S. Department of Agriculture’s National Finance Cen-ter for payroll and personnel action processing services and with the U.S. Department of Agriculture’s APHIS Business Services for most human re-sources management services.

(9) Office of Information Resources Management. The Office of Information Resources Management develops, im-plements, and maintains the Board’s automated information systems.

(c) Regional and Field Offices. The Board has regional and field offices lo-cated throughout the country (See Ap-pendix II to 5 CFR part 1201 for a list of the regional and field offices). Judges in the regional and field offices hear and decide initial appeals and other as-signed cases as provided for in the Board’s regulations.

[62 FR 49589, Sept. 23, 1997, as amended at 64 FR 15916, Apr. 2, 1999; 70 FR 30608, May 27, 2005]

PART 1201—PRACTICES AND PROCEDURES

Subpart A—Jurisdiction and Definitions

Sec. 1201.1 General. 1201.2 Original jurisdiction. 1201.3 Appellate jurisdiction. 1201.4 General definitions.

Subpart B—Procedures for Appellate Cases

GENERAL

1201.11 Scope and policy. 1201.12 Revocation, amendment, or waiver

of rules. 1201.13 Appeals by Board employees. 1201.14 Electronic filing procedures.

APPEAL OF AGENCY ACTION; PLEADINGS

1201.21 Notice of appeal rights. 1201.22 Filing an appeal and responses to ap-

peals. 1201.23 Computation of time. 1201.24 Content of an appeal; right to hear-

ing. 1201.25 Content of agency response. 1201.26 Number of pleadings, service, and re-

sponse. 1201.27 Class appeals. 1201.28 Case suspension procedures. 1201.29 Dismissal without prejudice.

PARTIES, REPRESENTATIVES, AND WITNESSES

1201.31 Representatives. 1201.32 Witnesses; right to representation. 1201.33 Federal witnesses. 1201.34 Intervenors and amicus curiae. 1201.35 Substituting parties. 1201.36 Consolidating and joining appeals. 1201.37 Witness fees.

JUDGES

1201.41 Judges. 1201.42 Disqualifying a judge. 1201.43 Sanctions.

HEARINGS

1201.51 Scheduling the hearing. 1201.52 Public hearings. 1201.53 Record of proceedings. 1201.55 Motions. 1201.56 Burden and degree of proof. 1201.57 Establishing jurisdiction in appeals

not covered by § 1201.56; burden and de-gree of proof; scope of review.

1201.58 Order of hearing. 1201.59 Closing the record.

EVIDENCE

1201.61 Exclusion of evidence and testi-mony.

1201.63 Stipulations. 1201.64 Official notice.

DISCOVERY

1201.71 Purpose of discovery. 1201.72 Explanation and scope of discovery. 1201.73 Discovery procedures. 1201.74 Orders for discovery. 1201.75 Taking depositions.

SUBPOENAS

1201.81 Requests for subpoenas.


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5 CFR Ch. II (1–1–16 Edition) Pt. 1201

1201.82 Motions to quash subpoenas. 1201.83 Serving subpoenas. 1201.84 Proof of service. 1201.85 Enforcing subpoenas.

INTERLOCUTORY APPEALS

1201.91 Explanation. 1201.92 Criteria for certifying interlocutory

appeals. 1201.93 Procedures.

EX PARTE COMMUNICATIONS

1201.101 Explanation and definitions. 1201.102 Prohibition on ex parte commu-

nications. 1201.103 Placing communications in the

record; sanctions.

FINAL DECISIONS

1201.111 Initial decision by judge. 1201.112 Jurisdiction of judge. 1201.113 Finality of decision.

Subpart C—Petitions for Review of Initial Decisions

1201.114 Petition and cross petition for re-view—content and procedure.

1201.115 Criteria for granting petition or cross petition for review.

1201.116 Compliance with orders for interim relief.

1201.117 Board decisions; procedures for re-view or reopening.

1201.118 Board reopening of final decisions. 1201.119 OPM petition for reconsideration. 1201.120 Judicial review.

Subpart D—Procedures for Original Jurisdiction Cases

GENERAL

1201.121 Scope of jurisdiction; application of subparts B, F, and H.

SPECIAL COUNSEL DISCIPLINARY ACTIONS

1201.122 Filing complaint; serving docu-ments on parties.

1201.123 Contents of complaint. 1201.124 Rights; answer to complaint. 1201.125 Administrative law judge. 1201.126 Final decisions. 1201.127 Judicial review.

SPECIAL COUNSEL CORRECTIVE ACTIONS

1201.128 Filing complaint; serving docu-ments on parties.

1201.129 Contents of complaint. 1201.130 Rights; answer to complaint. 1201.131 Judge. 1201.132 Final decisions. 1201.133 Judicial review.

SPECIAL COUNSEL REQUESTS FOR STAYS

1201.134 Deciding official; filing stay re-quest; serving documents on parties.

1201.135 Contents of stay request. 1201.136 Action on stay request.

ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES

1201.137 Covered actions; filing complaint; serving documents on parties.

1201.138 Contents of complaint. 1201.139 Rights; answer to complaint. 1201.140 Judge; requirement for finding of

good cause. 1201.141 Judicial review. 1201.142 Actions filed by administrative law

judges.

REMOVAL FROM THE SENIOR EXECUTIVE SERVICE

1201.143 Right to hearing; filing complaint; serving documents on parties.

1201.144 Hearing procedures; referring the record.

1201.145 No appeal.

REQUESTS FOR PROTECTIVE ORDERS

1201.146 Requests for protective orders by the Special Counsel.

1201.147 Requests for protective orders by persons other than the Special Counsel.

1201.148 Enforcement of protective orders.

Subpart E—Procedures for Cases Involving Allegations of Discrimination

1201.151 Scope and policy. 1201.152 Compliance with subpart B proce-

dures. 1201.153 Contents of appeal. 1201.154 Time for filing appeal. 1201.155 Requests for review of arbitrators’

decisions. 1201.156 Time for processing appeals involv-

ing allegations of discrimination. 1201.157 Notice of right to judicial review.

REVIEW OF BOARD DECISION

1201.161 Action by the Equal Employment Opportunity Commission; judicial re-view.

1201.162 Board action on the Commission de-cision; judicial review.

SPECIAL PANEL

1201.171 Referral of case to Special Panel. 1201.172 Organization of Special Panel; des-

ignation of members. 1201.173 Practices and procedures of Special

Panel. 1201.174 Enforcing the Special Panel deci-

sion. 1201.175 Judicial review of cases decided

under 5 U.S.C. 7702.


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Merit Systems Protection Board § 1201.3

Subpart F—Enforcement of Final Decisions and Orders

1201.181 Authority and explanation. 1201.182 Petition for enforcement. 1201.183 Procedures for processing petitions

for enforcement.

Subpart G—Savings Provisions

1201.191 Savings provisions.

Subpart H—Attorney Fees (Plus Costs, Ex-pert Witness Fees, and Litigation Ex-penses, Where Applicable) and Dam-ages (Consequential, Liquidated, and Compensatory)

1201.201 Statement of purpose. 1201.202 Authority for awards. 1201.203 Proceedings for attorney fees. 1201.204 Proceedings for consequential, liq-

uidated, or compensatory damages. 1201.205 Judicial review. APPENDIX I TO PART 1201 [RESERVED] APPENDIX II TO PART 1201—APPROPRIATE RE-

GIONAL OR FIELD OFFICE FOR FILING AP-PEALS

APPENDIX III TO PART 1201 [RESERVED] APPENDIX IV TO PART 1201—SAMPLE DEC-

LARATION UNDER 28 U.S.C. 1746

AUTHORITY: 5 U.S.C. 1204, 1305, and 7701, and 38 U.S.C. 4331, unless otherwise noted.

SOURCE: 54 FR 53504, Dec. 29, 1989, unless otherwise noted.


§ 1201.1 General. The Board has two types of jurisdic-

tion, original and appellate.

§ 1201.2 Original jurisdiction. The Board’s original jurisdiction in-

cludes the following cases: (a) Actions brought by the Special

Counsel under 5 U.S.C. 1214, 1215, and 1216;

(b) Requests, by persons removed from the Senior Executive Service for performance deficiencies, for informal hearings; and

(c) Actions taken against administra-tive law judges under 5 U.S.C. 7521.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 66814, Dec. 22, 1997]

§ 1201.3 Appellate jurisdiction. (a) Generally. The Board’s appellate

jurisdiction is limited to those matters

over which it has been given jurisdic-tion by law, rule, or regulation. The Board’s jurisdiction does not depend solely on the label or nature of the ac-tion or decision taken or made but may also depend on the type of Federal ap-pointment the individual received, e.g., competitive or excepted service, whether an individual is preference eli-gible, and other factors. Accordingly, the laws and regulations cited below, which are the source of the Board’s ju-risdiction, should be consulted to de-termine not only the nature of the ac-tions or decisions that are appealable, but also the limitations as to the types of employees, former employees, or ap-plicants for employment who may as-sert them. Instances in which a law or regulation authorizes the Board to hear an appeal or claim include the fol-lowing:

(1) Adverse actions. Removals (termi-nations of employment after comple-tion of probationary or other initial service period), reductions in grade or pay, suspension for more than 14 days, or furloughs for 30 days or less for cause that will promote the efficiency of the service; an involuntary resigna-tion or retirement is considered to be a removal (5 U.S.C. 7511–7514; 5 CFR part 752, subparts C and D);

(2) Retirement appeals. Determina-tions affecting the rights or interests of an individual under the Federal re-tirement laws (5 U.S.C. 8347(d)(1)–(2) and 8461(e)(1); and 5 U.S.C. 8331 note; 5 CFR parts 831, 839, 842, 844, and 846);

(3) Termination of probationary employ-ment. Appealable issues are limited to a determination that the termination was motivated by partisan political reasons or marital status, and/or if the termination was based on a pre-ap-pointment reason, whether the agency failed to take required procedures. These appeals are not generally avail-able to employees in the excepted serv-ice. (38 U.S.C. 2014(b)(1)(D); 5 CFR 315.806 & 315.908(b));

(4) Restoration to employment following recovery from a work-related injury. Fail-ure to restore, improper restoration of, or failure to return following a leave of absence following recovery from a com-pensable injury. (5 CFR 353.304);


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(5) Performance-based actions under chapter 43. Reduction in grade or re-moval for unacceptable performance (5 U.S.C. 4303(e); 5 CFR part 432);

(6) Reduction in force. Separation, de-motion, or furlough for more than 30 days, when the action was effected be-cause of a reduction in force (5 CFR 351.901); Reduction-in-force action af-fecting a career or career candidate ap-pointee in the Foreign Service (22 U.S.C. 4011);

(7) Employment practices appeal. Em-ployment practices administered by the Office of Personnel Management to examine and evaluate the qualifica-tions of applicants for appointment in the competitive service (5 CFR 300.104);

(8) Denial of within-grade pay increase. Reconsideration decision sustaining a negative determination of competence for a general schedule employee (5 U.S.C. 5335(c); 5 CFR 531.410);

(9) Suitability action. Action based on suitability determinations, which re-late to an individual’s character or conduct that may have an impact on the integrity or efficiency of the serv-ice. Suitability actions include the cancellation of eligibility, removal, cancellation of reinstatement eligi-bility, and debarment. A non-selection or cancellation of eligibility for a spe-cific position based on an objection to an eligible or a pass over of a pref-erence eligible under 5 CFR 332.406 is not a suitability action. (5 CFR 731.501, 731.203, 731.101(a));

(10) Various actions involving the Sen-ior Executive Service. Removal or sus-pension for more than 14 days (5 U.S.C. 7543(d) and 5 CFR 752.605); Reduction- in-force action affecting a career ap-pointee (5 U.S.C. 3595); Furlough of a career appointee (5 CFR 359.805); Re-moval or transfer of a Senior Executive Service employee of the Department of Veterans Affairs (38 U.S.C. 713 and 5 CFR part 1210); and

(11) Miscellaneous restoration and reem-ployment matters.

(i) Failure to afford reemployment priority rights pursuant to a Reem-ployment Priority List following sepa-ration by reduction in force (5 CFR 330.214);

(ii) Full recovery from a compensable injury after more than 1 year, because

of the employment of another person (5 CFR 302.501);

(iii) Failure to reinstate a former em-ployee after service under the Foreign Assistance Act of 1961 (5 CFR 352.508);

(iv) Failure to re-employ a former employee after movement between ex-ecutive agencies during an emergency (5 CFR 352.209);

(v) Failure to re-employ a former em-ployee after detail or transfer to an international organization (5 CFR 352.313);

(vi) Failure to re-employ a former employee after service under the In-dian Self-Determination Act (5 CFR 352.707); or

(vii) Failure to re-employ a former employee after service under the Tai-wan Relations Act (5 CFR 352.807).

(b)(1) Appeals under the Uniformed Services Employment and Reemployment Rights Act and the Veterans Employment Opportunities Act. Appeals filed under the Uniformed Services Employment and Reemployment Rights Act (Public Law 103–353), as amended, and the Vet-erans Employment Opportunities Act (Public Law 105–339) are governed by part 1208 of this title. The provisions of subparts A, B, C, and F of part 1201 apply to appeals governed by part 1208 unless other specific provisions are made in that part. The provisions of subpart H of this part regarding awards of attorney fees apply to appeals gov-erned by part 1208 of this title.

(2) Appeals involving an allegation that the action was based on appellant’s whis-tleblowing or other protected activity. Ap-peals of actions appealable to the Board under any law, rule, or regula-tion, in which the appellant alleges that the action was taken because of the appellant’s whistleblowing or other protected activity, are governed by part 1209 of this title. The provisions of subparts B, C, E, F, and G of part 1201 apply to appeals and stay requests gov-erned by part 1209 unless other specific provisions are made in that part. The provisions of subpart H of this part re-garding awards of attorney fees, com-pensatory damages, and consequential damages under 5 U.S.C. 1221(g) apply to appeals governed by part 1209 of this chapter.


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(c) Limitations on appellate jurisdic-tion, collective bargaining agreements, and election of procedures:

(1) For an employee covered by a col-lective bargaining agreement under 5 U.S.C. 7121, the negotiated grievance procedures contained in the agreement are the exclusive procedures for resolv-ing any action that could otherwise be appealed to the Board, with the fol-lowing exceptions:

(i) An appealable action involving discrimination under 5 U.S.C. 2302(b)(1), reduction in grade or removal under 5 U.S.C. 4303, or adverse action under 5 U.S.C. 7512, may be raised under the Board’s appellate procedures, or under the negotiated grievance procedures, but not under both;

(ii) An appealable action involving a prohibited personnel practice other than discrimination under 5 U.S.C. 2302(b)(1) may be raised under not more than one of the following procedures:

(A) The Board’s appellate procedures; (B) The negotiated grievance proce-

dures; or (C) The procedures for seeking cor-

rective action from the Special Counsel under subchapters II and III of chapter 12 of title 5 of the United States Code.

(iii) Except for actions involving dis-crimination under 5 U.S.C. 2302(b)(1) or any other prohibited personnel prac-tice, any appealable action that is ex-cluded from the application of the ne-gotiated grievance procedures may be raised only under the Board’s appellate procedures.

(2) Choice of procedure. When an em-ployee has an option of pursuing an ac-tion under the Board’s appeal proce-dures or under negotiated grievance procedures, the Board considers the choice between those procedures to have been made when the employee timely files an appeal with the Board or timely files a written grievance, whichever event occurs first. When an employee has the choice of pursuing an appealable action involving a prohib-ited personnel practice other than dis-crimination under 5 U.S.C. 2302(b)(1) in accordance with paragraph (c)(1)(ii) of this section, the Board considers the choice among those procedures to have been made when the employee timely files an appeal with the Board, timely files a written grievance under the ne-

gotiated grievance procedure, or seeks corrective action from the Special Counsel by making an allegation under 5 U.S.C. 1214(a)(1), whichever event oc-curs first.

(3) Review of discrimination grievances. If an employee chooses the negotiated grievance procedure under paragraph (c)(2) of this section and alleges dis-crimination as described at 5 U.S.C. 2302(b)(1), then the employee, after hav-ing obtained a final decision under the negotiated grievance procedure, may ask the Board to review that final deci-sion. The request must be filed with the Clerk of the Board in accordance with § 1201.154.

[54 FR 53504, Dec. 29, 1989, as amended at 56 FR 41748, Aug. 23, 1991; 59 FR 65235, Dec. 19, 1994; 61 FR 1, Jan. 2, 1996; 62 FR 17044, 17045, Apr. 9, 1997; 62 FR 66814, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000; 66 FR 30635, June 7, 2001; 70 FR 30608, May 27, 2005; 72 FR 56884, Oct. 5, 2007; 74 FR 9343, Mar. 4, 2009; 77 FR 62363, Oct. 12, 2012; 78 FR 39545, July 2, 2013; 79 FR 48943, Aug. 19, 2014]

§ 1201.4 General definitions. (a) Judge. Any person authorized by

the Board to hold a hearing or to de-cide a case without a hearing, includ-ing the Board or any member of the Board, or an administrative law judge appointed under 5 U.S.C. 3105 or other employee of the Board designated by the Board to hear such cases, except that in any case involving a removal from the service, the case shall be heard by the Board, an employee expe-rienced in hearing appeals, or an ad-ministrative law judge.

(b) Pleading. Written submission set-ting out claims, allegations, argu-ments, or evidence. Pleadings include briefs, motions, petitions, attach-ments, and responses.

(c) Motion. A request that a judge take a particular action.

(d) Appropriate regional or field office. The regional or field office of the Board that has jurisdiction over the area where the appellant’s duty station was located when the agency took the ac-tion. Appeals of Office of Personnel Management reconsideration decisions concerning retirement benefits, and ap-peals of adverse suitability determina-tions under 5 CFR part 731, must be filed with the regional or field office that has jurisdiction over the area


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5 CFR Ch. II (1–1–16 Edition) § 1201.11

where the appellant lives. Appendix II of these regulations lists the geo-graphic areas over which each of the Board’s regional and field offices has jurisdiction. Appeals, however, may be transferred from one regional or field office to another.

(e) Party. A person, an agency, or an intervenor, who is participating in a Board proceeding. This term applies to the Office of Personnel Management and to the Office of Special Counsel when those organizations are partici-pating in a Board proceeding.

(f) Appeal. A request for review of an agency action.

(g) Petition for review. A request for review of an initial decision of a judge.

(h) Day. Calendar day. (i) Service. The process of furnishing a

copy of any pleading to Board officials, other parties, or both, by mail, by fac-simile, by commercial or personal de-livery, or by electronic filing (e-filing) in accordance with § 1201.14.

(j) Date of service. ‘‘Date of service’’ has the same meaning as ‘‘date of fil-ing’’ under paragraph (l) of this sec-tion.

(k) Certificate of service. A document certifying that a party has served cop-ies of pleadings on the other parties or, in the case of paper documents associ-ated with electronic filings under para-graph (h) of § 1201.14, on the MSPB.

(l) Date of filing. A document that is filed with a Board office by personal delivery is considered filed on the date on which the Board office receives it. The date of filing by facsimile is the date of the facsimile. The date of filing by mail is determined by the postmark date; if no legible postmark date ap-pears on the mailing, the submission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commercial deliv-ery is the date the document was deliv-ered to the commercial delivery serv-ice. The date of filing by e-filing is the date of electronic submission.

(m) Electronic filing (e-filing). Filing and receiving documents in electronic form in proceedings within the Board’s appellate or original jurisdiction in ac-cordance with § 1201.14.

(n) E-filer. A party or representative who has registered to engage in e-filing under paragraph (e) of § 1201.14.

(o) Grievance. A complaint by an em-ployee or labor organization under a negotiated grievance procedure covered by 5 U.S.C. 7121.

(p) Substantial evidence. The degree of relevant evidence that a reasonable person, considering the record as a whole, might accept as adequate to support a conclusion, even though other reasonable persons might dis-agree. This is a lower standard of proof than preponderance of the evidence.

(q) Preponderance of the evidence. The degree of relevant evidence that a rea-sonable person, considering the record as a whole, would accept as sufficient to find that a contested fact is more likely to be true than untrue.

(r) Harmful error. Error by the agency in the application of its procedures that is likely to have caused the agen-cy to reach a conclusion different from the one it would have reached in the absence or cure of the error. The bur-den is upon the appellant to show that the error was harmful, i.e., that it caused substantial harm or prejudice to his or her rights.

(s) Nonfrivolous allegation. A nonfrivo-lous allegation is an assertion that, if proven, could establish the matter at issue. An allegation generally will be considered nonfrivolous when, under oath or penalty of perjury, an indi-vidual makes an allegation that:

(1) Is more than conclusory; (2) Is plausible on its face; and (3) Is material to the legal issues in

the appeal.

[54 FR 53504, Dec. 29, 1989, as amended at 58 FR 36345, July 7, 1993; 59 FR 65235, Dec. 19, 1994; 68 FR 59860, Oct. 20, 2003; 69 FR 57628, Sept. 27, 2004; 73 FR 10129, Feb. 26, 2008; 77 FR 62364, Oct. 12, 2012; 80 FR 4496, Jan. 28, 2015]

Subpart B—Procedures for Appellate Cases

GENERAL

§ 1201.11 Scope and policy.

The regulations in this subpart apply to Board appellate proceedings except as otherwise provided in § 1201.13. The regulations in this subpart apply also


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to appellate proceedings and stay re-quests covered by part 1209 unless other specific provisions are made in that part. These regulations also apply to original jurisdiction proceedings of the Board except as otherwise provided in subpart D. It is the Board’s policy that these rules will be applied in a manner that expedites the processing of each case. It is the Board’s policy that these rules will be applied in a manner that ensures the fair and effi-cient processing of each case.

[74 FR 9343, Mar. 4, 2009]

§ 1201.12 Revocation, amendment, or waiver of rules.

The Board may revoke, amend, or waive any of these regulations. A judge may, for good cause shown, waive a Board regulation unless a statute re-quires application of the regulation. The judge must give notice of the waiv-er to all parties, but is not required to give the parties an opportunity to re-spond.

§ 1201.13 Appeals by Board employees. Appeals by Board employees will be

filed with the Clerk of the Board and will be assigned to an administrative law judge for adjudication under this subchapter. The Board’s policy is to in-sulate the adjudication of its own em-ployees’ appeals from agency involve-ment as much as possible. Accordingly, the Board will not disturb initial deci-sions in those cases unless the party shows that there has been harmful pro-cedural irregularity in the proceedings before the administrative law judge or a clear error of law. In addition, the Board, as a matter of policy, will not rule on any interlocutory appeals or motions to disqualify the administra-tive law judge assigned to those cases until the initial decision has been issued.

§ 1201.14 Electronic filing procedures. (a) General. This section prescribes

the rules and procedures by which par-ties and representatives to proceedings within the MSPB’s appellate and origi-nal jurisdiction may file and receive documents in electronic form.

(b) Matters subject to electronic filing. Subject to the registration require-ment of paragraph (e) of this section,

parties and representatives may use electronic filing (e-filing) to do any of the following:

(1) File any pleading, including a new appeal, in any matter within the MSPB’s appellate jurisdiction (§ 1201.3);

(2) File any pleading in any matter within the MSPB’s original jurisdic-tion (§ 1201.2);

(3) File a petition for enforcement of a final MSPB decision (§ 1201.182);

(4) File a motion for an attorney fee award as a prevailing party (§ 1201.203);

(5) File a motion for compensatory or consequential damages (§ 1201.204);

(6) Designate a representative, re-voke such a designation, or change such a designation (§ 1201.31); or

(7) Notify the MSPB of a change in contact information such as address (geographic or electronic mail) or tele-phone number.

(c) Matters excluded from electronic fil-ing. Electronic filing may not be used to:

(1) File a request to hear a case as a class appeal or any opposition thereto (§ 1201.27);

(2) Serve a subpoena (§ 1201.83); (3) File a pleading with the Special

Panel (§ 1201.137); (4) File a pleading that contains Sen-

sitive Security Information (SSI) (49 CFR parts 15 and 1520);

(5) File a pleading that contains clas-sified information (32 CFR part 2001); or

(6) File a request to participate as an amicus curiae or file a brief as amicus curiae pursuant to § 1201.34 of this part.

(d) Internet is sole venue for electronic filing. Following the instructions at e- Appeal Online, the MSPB’s e-Appeal site (https://e-appeal.mspb.gov), is the only method allowed for filing elec-tronic pleadings with the MSPB. The MSPB will not accept pleadings filed by electronic mail (e-mail).

(e) Registration as an e-filer. (1) Reg-istration as an e-filer constitutes con-sent to accept electronic service of pleadings filed by other registered e-fil-ers and documents issued by the MSPB. Except when filing a new appeal within the MSPB’s appellate jurisdic-tion (§ 1201.3), no party or representa-tive may file an electronic pleading with the MSPB unless he or she has registered with the MSPB as an e-filer.


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5 CFR Ch. II (1–1–16 Edition) § 1201.14

(2) With the exception of a designa-tion of a representative by a party who is an individual, the exclusive means for a party or representative to reg-ister as an e-filer during an MSPB pro-ceeding is to follow the instructions at e-Appeal Online (https://e-ap-peal.mspb.gov).

(3) When a party who is an individual is represented, the party and the rep-resentative can make separate deter-minations whether to register as an e- filer. For example, an appellant may file and receive pleadings and MSPB documents by non-electronic means, even though his or her representative has registered as an e-filer. When a party has more than one representa-tive, however, all representatives must choose the same method of service.

(4) A party or representative may withdraw his or her registration as an e-filer. Such withdrawal means that, effective upon the MSPB’s receipt of this withdrawal, pleadings and MSPB documents will no longer be served on that person in electronic form. A with-drawal of registration as an e-filer may be filed at e-Appeal Online, in which case service is governed by paragraph (j) of this section, or by non-electronic means, in which case service is gov-erned by § 1201.26(b).

(5) Registration as an e-filer applies only to a single MSPB appeal or pro-ceeding. If an appeal is dismissed with-out prejudice, however, and is later refiled, an election of e-filing status will remain in effect. An election of e- filing status will also remain in effect for purposes of filing a petition for en-forcement under Subpart F of this part, or filing a motion for an attorney fee award or compensatory or con-sequential damages under Subpart H of this Part.

(6) Each e-filer must notify the MSPB and other participants of any change in his or her e-mail address. When done via e-Appeal Online, such notification is done by selecting the ‘‘Pleading’’ option.

(f) e-Filing not mandatory for e-filers. A party or representative who has reg-istered as an e-filer may file any plead-ing by non-electronic means, i.e., via postal mail, fax, or personal or com-mercial delivery.

(g) Form of electronic pleadings—(1) Options for e-filing. An appellant or rep-resentative using e-Appeal Online to file a new appeal within the MSPB’s appellate jurisdiction (§ 1201.3) must complete the structured interview at that site (https://e-appeal.mspb.gov). For all other pleadings, the e-filer has the option of uploading an electronic file or entering the text of the pleading on-line. Regardless of the means of filing a particular pleading, the e-filer will be allowed to submit supporting docu-mentation such as attachments, in ei-ther electronic or paper form, as de-scribed in paragraphs (g)(2), (g)(3), and (h) of this section.

(2) Electronic formats allowed. The MSPB will accept numerous electronic formats, including word-processing and spreadsheet formats, Portable Docu-ment Format (PDF), and image files (files created by scanning). A list of formats allowed can be found at e-Ap-peal Online. All electronic documents must be formatted so that they will print on standard 81⁄2 inch by 11 inch paper.

(3) Requirements for pleadings with 3 or more electronic attachments. An e-filer who uploads 3 or more supporting docu-ments, in addition to the document that constitutes the primary pleading, must identify each attachment, either by filling out the table for such attach-ments at e-Appeal Online, or by uploading the supporting documents in the form of one or more PDF files in which each attachment is bookmarked. Each attachment must be designated with a brief descriptive label, which will include exhibit numbers or letters where appropriate or required, e.g., ‘‘Exh. 4b, Decision Notice.’’

(h) Hybrid pleadings that include both electronic and paper documents. An e- filer may file a hybrid pleading in which part of the pleading is submitted electronically, and part of the pleading consists of one or more paper docu-ments filed by non-electronic means. All components of a hybrid pleading are subject to applicable time limits. If one or more parts of a hybrid pleading are untimely filed, the judge or the Clerk may reject the untimely part or parts while accepting timely filed parts of the same pleading.


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(i) Repository at e-Appeal Online. All notices, orders, decisions, and other documents issued by the MSPB, as well as all pleadings filed via e-Appeal On-line, will be made available to parties and their representatives for viewing and downloading at the Repository at e-Appeal Online. In addition, most pleadings filed at the petition for re-view stage of adjudication, and some pleadings filed at the regional office level, will be available at the Reposi-tory. Also available at the Repository will be an electronic ‘‘docket sheet’’ listing all documents issued by the MSPB to the parties, as well as all pleadings filed by the parties, includ-ing those pleadings that are not avail-able for viewing and downloading in electronic form. Access to appeal docu-ments at the Repository will be limited to the parties and representatives of the appeals in which they were filed.

(j) Service of electronic pleadings and MSPB documents. (1) When MSPB docu-ments are issued, e-mail messages will be sent to e-filers that notify them of the issuance and that contain links to the Repository where the documents can be viewed and downloaded. Paper copies of these documents will not or-dinarily be served on e-filers. Pleadings submitted via e-Appeal Online will be available to parties and representa-tives at the e-Appeal Online Reposi-tory, and the MSPB will send e-mail messages to other e-filers notifying them of each pleading, with a link to the Repository. When using e-Appeal Online to file a pleading, e-filers will be notified of all documents that must be served by non-electronic means, and they must certify that they will serve all such documents no later than the first business day after the electronic submission.

(2) Delivery of e-mail can encounter a number of failure points. If the MSPB is advised of non-delivery, it will at-tempt to redeliver and, if that is unsuc-cessful, will deliver by postal mail or other means. E-filers are responsible for ensuring that e-mail from @mspb.gov is not blocked by filters.

(3) E-filers are responsible for moni-toring case activity at the Repository at e-Appeal Online to ensure that they have received all case-related docu-ments.

(k) Documents requiring a signature. Electronic documents filed by a party who has registered as an e-filer pursu-ant to this section shall be deemed to be signed for purposes of any regula-tion in part 1201, 1203, 1208, or 1209 of this chapter that requires a signature.

(l) Affidavits and declarations made under penalty of perjury. Registered e- filers may submit electronic pleadings in the form of declarations made under penalty of perjury under 28 U.S.C. 1746, as described in Appendix IV to this part. If the declarant is someone other than the e-filer, a physically signed af-fidavit or declaration should be uploaded as an image file, or submitted separately as a non-electronic docu-ment under paragraph (h) of this sec-tion.

(m) Date electronic documents are filed and served. (1) As provided in § 1201.4(l) of this part, the date of filing for plead-ings filed via e-Appeal Online is the date of electronic submission. All pleadings filed via e-Appeal Online are time stamped with Eastern Time, but the timeliness of a pleading will be de-termined based on the time zone from which the pleading was submitted. For example, a pleading filed at 11 p.m. Pa-cific Time on August 20 will be stamped by e-Appeal Online as being filed at 2 a.m. Eastern Time on August 21. However, if the pleading was re-quired to be filed with the Washington Regional Office (in the Eastern Time Zone) on August 20, it would be consid-ered timely, as it was submitted prior to midnight Pacific Time on August 20.

(2) MSPB documents served elec-tronically on registered e-filers are deemed received on the date of elec-tronic submission.

(n) Authority of a judge or the Clerk to regulate e-filing. (1) In the event that the MSPB or any party encounters dif-ficulties filing, serving, or receiving electronic documents, the judge or the Clerk of the Board may order one or more parties to cease filing pleadings by e-filing, cease serving documents in electronic form, or take both these ac-tions. In such instances, filing and service shall be undertaken in accord-ance with § 1201.26. The authority to order the cessation of the use of elec-tronic filing may be for a particular submission, for a particular time


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5 CFR Ch. II (1–1–16 Edition) § 1201.21

frame, or for the duration of the pend-ency of a case.

(2) A judge or the Clerk of the Board may require that any document filed electronically be submitted in non- electronic form and bear the written signature of the submitter. A party re-ceiving such an order from a judge or the Clerk of the Board shall, within 5 calendar days, serve on the judge or Clerk of the Board by postal mail, by fax, or by commercial or personal de-livery a signed, non-electronic copy of the document.

(o) MSPB reserves the right to revert to traditional methods of service. The MSPB may serve documents via traditional means—postal mail, fax, personal or commercial delivery—at its discretion. Parties and their representatives are responsible for ensuring that the MSPB always has their current postal mailing addresses, even when they have reg-istered as e-filers.

(p)(1) Except as provided in para-graphs (p)(2) and (3) of this section, all pleadings (including the initial appeal) except those containing classified in-formation or Sensitive Security Infor-mation filed with the Washington Re-gional Office (WRO) and the Denver Field Office (DEFO) by agencies or at-torneys must be e-filed. Agencies and attorneys in proceedings in the WRO and the DEFO must register as e-filers pursuant to paragraph (e) of this sec-tion.

(2) Agencies or attorneys who believe that e-filing would create an undue burden on their operations may request an exemption from the administrative judge for a specific appeal and/or plead-ing. Such a request shall include a spe-cific and detailed explanation why e- filing would create an undue burden.

(3) Except in unusual circumstances, exemptions granted under this section shall apply only to pleadings that in-clude scanned material. All other pleadings except those containing clas-sified information or Sensitive Secu-rity Information must be e-filed. The administrative judge may periodically revisit the need for an exemption granted under this subsection, and re-voke the exemption as appropriate.

[73 FR 10129, Feb. 26, 2008, as amended at 76 FR 63538, Oct. 13, 2011; 77 FR 62364, Oct. 12, 2012]

APPEAL OF AGENCY ACTION; PLEADINGS

§ 1201.21 Notice of appeal rights.

When an agency issues a decision no-tice to an employee on a matter that is appealable to the Board, the agency must provide the employee with the following:

(a) Notice of the time limits for ap-pealing to the Board, the requirements of § 1201.22(c), and the address of the ap-propriate Board office for filing the ap-peal;

(b) A copy, or access to a copy, of the Board’s regulations;

(c) A copy, or access to a copy, of the MSPB appeal form available at the Board’s Web site (http://www.mspb.gov), and

(d) Notice of any right the employee has to file a grievance or seek correc-tive action under subchapters II and III of 5 U.S.C. chapter 12, including:

(1) Whether the election of any appli-cable grievance procedure will result in waiver of the employee’s right to file an appeal with the Board;

(2) Whether both an appeal to the Board and a grievance may be filed on the same matter and, if so, the cir-cumstances under which proceeding with one will preclude proceeding with the other, and specific notice that fil-ing a grievance will not extend the time limit for filing an appeal with the Board;

(3) Whether there is any right to re-quest Board review of a final decision on a grievance in accordance with § 1201.155 of this part; and

(4) The effect of any election under 5 U.S.C. 7121(g), including the effect that seeking corrective action under sub-chapters II and III of 5 U.S.C. chapter 12 will have on the employee’s appeal rights before the Board.

(e) Notice of any right the employee has to file a complaint with the Equal Employment Opportunity Commission or to grieve allegations of unlawful dis-crimination, consistent with the provi-sions of 5 U.S.C. 7121(d) and 29 CFR 1614.301 and 1614.302.

(f) The name or title and contact in-formation for the agency official to whom the Board should send the Ac-knowledgment Order and copy of the appeal in the event the employee files


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an appeal with the Board. Contact in-formation should include the official’s mailing address, email address, tele-phone and fax numbers.

[74 FR 9343, Mar. 4, 2009, as amended at 77 FR 62364, Oct. 12, 2012; 78 FR 21518, Apr. 11, 2013]

§ 1201.22 Filing an appeal and re-sponses to appeals.

(a) Place of filing. Appeals, and re-sponses to those appeals, must be filed with the appropriate Board regional or field office. See § 1201.4(d) of this part.

(b) Time of filing. (1) Except as pro-vided in paragraph (b)(2) of this sec-tion, an appeal must be filed no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision, which-ever is later. Where an appellant and an agency mutually agree in writing to attempt to resolve their dispute through an alternative dispute resolu-tion process prior to the timely filing of an appeal, however, the time limit for filing the appeal is extended by an additional 30 days—for a total of 60 days. A response to an appeal must be filed within 20 days of the date of the Board’s acknowledgment order. The time for filing a submission under this section is computed in accordance with § 1201.23 of this part.

(2) The time limit prescribed by para-graph (b)(1) of this section for filing an appeal does not apply where a law or regulation establishes a different time limit or where there is no applicable time limit. No time limit applies to ap-peals under the Uniformed Services Employment and Reemployment Rights Act (Pub. L. 103–353), as amend-ed; see part 1208 of this title. See part 1208 of this title for the statutory filing time limits applicable to appeals under the Veterans Employment Opportuni-ties Act (Pub. L. 105–339). See part 1209 of this title for the statutory filing time limits applicable to whistleblower appeals and stay requests.

(3) An appellant is responsible for keeping the agency informed of his or her current home address for purposes of receiving the agency’s decision, and correspondence which is properly ad-dressed and sent to the appellant’s ad-dress via postal or commercial delivery is presumed to have been duly deliv-

ered to the addressee. While such a pre-sumption may be overcome under the circumstances of a particular case, an appellant may not avoid service of a properly addressed and mailed decision by intentional or negligent conduct which frustrates actual service. The appellant may also be deemed to have received the agency’s decision if it was received by a designated representative or a person of suitable age and discre-tion residing with the appellant. The following examples illustrate the appli-cation of this rule:

Example A: An appellant who fails to pick up mail delivered to his or her post office box may be deemed to have received the agency decision.

Example B: An appellant who did not re-ceive his or her mail while in the hospital may overcome the presumption of actual re-ceipt.

Example C: An appellant may be deemed to have received an agency decision received by his or her roommate.

(c) Timeliness of appeals. If a party does not submit an appeal within the time set by statute, regulation, or order of a judge, it will be dismissed as untimely filed unless a good reason for the delay is shown. The judge will pro-vide the party an opportunity to show why the appeal should not be dismissed as untimely.

(d) Method of filing an appeal. Filing of an appeal must be made with the ap-propriate Board office by commercial or personal delivery, by facsimile, by mail, or by electronic filing under § 1201.14.

(e) Filing a response. Filing of a re-sponse must be made with the appro-priate Board office by commercial or personal delivery, by facsimile, by mail, or by electronic filing under § 1201.14.

[54 FR 53504, Dec. 29, 1989]

EDITORIAL NOTE: For FEDERAL REGISTER ci-tations affecting § 1201.22, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.fdsys.gov.

§ 1201.23 Computation of time.

In computing the number of days al-lowed for complying with any deadline, the first day counted is the day after the event from which the time period


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5 CFR Ch. II (1–1–16 Edition) § 1201.24

begins to run. If the date that ordi-narily would be the last day for filing falls on a Saturday, Sunday, or Federal holiday, the filing period will include the first workday after that date. Un-less a different deadline is specified by the Board or its designee, 5 days are added to a party’s deadline for respond-ing to a document served on the party by mail.

Example 1: If an employee receives a deci-sion notice that is effective on July 1, the 30- day period for filing an appeal starts to run on July 2. The filing ordinarily would be timely only if it is made by July 31. If July 31 is a Saturday, however, the last day for filing would be Monday, August 2.

Example 2: The judge orders the appellant to file a response to a jurisdictional order no later than October 15, 2012, and that the agency’s response is due 10 days after the fil-ing of the appellant’s pleading. If the appel-lant serves the agency with a pleading via regular mail on October 15, the agency’s deadline for filing a response will be October 30, not October 25.

[77 FR 62364, Oct. 12, 2012]

§ 1201.24 Content of an appeal; right to hearing.

(a) Content. Only an appellant, his or her designated representative, or a party properly substituted under § 1201.35 may file an appeal. Appeals may be in any format, including letter form. An appeal may be filed in elec-tronic form provided that the require-ments of § 1201.14 have been satisfied. All appeals must contain the following:

(1) The name, address, and telephone number of the appellant, and the name and address of the agency that took the action;

(2) A description of the action the agency took and its effective date;

(3) A request for hearing if the appel-lant wants one;

(4) A statement of the reasons why the appellant believes the agency ac-tion is wrong;

(5) A statement of the action the ap-pellant would like the judge to order;

(6) The name, address, and telephone number of the appellant’s representa-tive, if the appellant has a representa-tive;

(7) Where applicable, a copy of the notice of proposed action, the agency decision being appealed and, if avail-able, the SF–50 or similar notice of per-

sonnel action. No other attachments should be included with the appeal, as the agency will be submitting the doc-uments required by 1201.25 of this part, and there will be several opportunities to submit evidence and argument after the appeal is filed. An appellant should not miss the deadline for filing merely because he or she does not currently have all of the documents specified in this section.

(8) A statement telling whether the appellant or anyone acting on his or her behalf has filed a grievance or a formal discrimination complaint with any agency regarding this matter; and

(9) The signature of the appellant or, if the appellant has a representative, of the representative. If the appeal is electronically filed, compliance with § 1201.14 and the directions at the Board’s e-Appeal site (https://e-ap-peal.mspb.gov) satisfy the signature re-quirement.

(b) An appellant may raise a claim or defense not included in the appeal at any time before the end of the con-ference(s) held to define the issues in the case. An appellant may not raise a new claim or defense after that time, except for good cause shown. However, a claim or defense not included in the appeal may be excluded if a party shows that including it would result in undue prejudice.

(c) Use of Board form or electronic fil-ing. An appellant may comply with paragraph (a) of this section, and with § 1201.31, by completing MSPB Form 185, or by completing all requests for information marked as required at the e-Appeal site (https://e-appeal.mspb.gov). MSPB Form 185 can be accessed at the Board’s Web site (http://www.mspb.gov).

(d) Right to hearing. An appellant gen-erally has a right to a hearing on the merits if the appeal has been timely filed and the Board has jurisdiction over the appeal.

(e) Timely request. The appellant must submit any request for a hearing with the appeal, or within any other time period the judge sets for that purpose. If the appellant does not make a timely request for a hearing, the right to a hearing is waived.

[54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59862, Oct. 20, 2003; 69 FR 57629, Sept. 27, 2004; 77 FR 62364, Oct. 12, 2012]


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§ 1201.25 Content of agency response.

The agency response to an appeal must contain the following:

(a) The name of the appellant and of the agency whose action the appellant is appealing;

(b) A statement identifying the agen-cy action taken against the appellant and stating the reasons for taking the action;

(c) All documents contained in the agency record of the action;

(d) Designation of and signature by the authorized agency representative; and

(e) Any other documents or responses requested by the Board.

§ 1201.26 Number of pleadings, service, and response.

(a) Number. The appellant must file two copies of both the appeal and all attachments with the appropriate Board office, unless the appellant files an appeal in electronic form under § 1201.14.

(b) Service—(1) Service by the Board. The appropriate office of the Board will mail a copy of the appeal to each party to the proceeding other than the appel-lant. It will attach to each copy a serv-ice list, consisting of a list of the names and addresses of the parties to the proceeding or their designated rep-resentatives.

(2) Service by the parties. The parties must serve on each other one copy of each pleading, as defined by § 1201.4(b), and all documents submitted with it, except for the appeal. They may do so by mail, by facsimile, by commercial or personal delivery, or by electronic filing in accordance with § 1201.14. Doc-uments and pleadings must be served upon each party and each representa-tive. A certificate of service stating how and when service was made must accompany each pleading. The parties must notify the appropriate Board of-fice and one another, in writing, of any changes in the names, or addresses on the service list.

(c) Paper size. Pleadings and attach-ments must be filed on 81⁄2 by 11-inch paper, except for good cause shown. This requirement enables the Board to comply with standards established for U.S. courts. All electronic documents

must be formatted so that they will print on 81⁄2 by 11-inch paper.

[54 FR 53504, Dec. 29, 1989; 55 FR 548, Jan. 5, 1990, as amended at 58 FR 36345, July 7, 1993; 68 FR 59862, Oct. 20, 2003; 69 FR 57629, Sept. 27, 2004]

§ 1201.27 Class appeals. (a) Appeal. One or more employees

may file an appeal as representatives of a class of employees. The judge will hear the case as a class appeal if he or she finds that a class appeal is the fair-est and most efficient way to adju-dicate the appeal and that the rep-resentative of the parties will ade-quately protect the interests of all par-ties. When a class appeal is filed, the time from the filing date until the judge issues his or her decision under paragraph (b) of this section is not counted in computing the time limit for individual members of the potential class to file individual appeals.

(b) Procedure. The judge will consider the appellant’s request and any opposi-tion to that request, and will issue an order within 30 days after the appeal is filed stating whether the appeal is to be heard as a class appeal. If the judge denies the request, the appellants af-fected by the decision may file indi-vidual appeals within 30 days after the date of receipt of the decision denying the request to be heard as a class ap-peal. Each individual appellant is re-sponsible for either filing an individual appeal within the original time limit, or keeping informed of the status of a class appeal and, if the class appeal is denied, filing an individual appeal within the additional 35-day period.

(c) Standards. In determining whether it is appropriate to treat an appeal as a class action, the judge will be guided but not controlled by the applicable provisions of the Federal Rules of Civil Procedure.

(d) Electronic filing. A request to hear a case as a class appeal and any opposi-tion thereto may not be filed in elec-tronic form. Subsequent pleadings may be filed and served in electronic form, provided that the requirements of § 1201.14 are satisfied.

[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004]


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5 CFR Ch. II (1–1–16 Edition) § 1201.28

§ 1201.28 Case suspension procedures. (a) Suspension period. The judge may

issue an order suspending the proc-essing of an appeal for up to 30 days. The judge may grant a second order suspending the processing of an appeal for up to an additional 30 days.

(b) Early termination of suspension pe-riod. The administrative judge may ter-minate the suspension period upon joint request of the parties or where the parties request the judge’s assist-ance and the judge’s involvement is likely to be extensive.

(c) Termination of suspension period. If the final day of any suspension period falls on a day on which the Board is closed for business, adjudication shall resume as of the first business day fol-lowing the expiration of the period.

(d) Mediation. Whenever an appeal is accepted into the Board’s Mediation Appeals Program (MAP), the proc-essing of the appeal and all deadlines are suspended until the mediator re-turns the case to the judge. This provi-sion does not apply where the parties enter into other forms of alternative dispute resolution.

[77 FR 62365, Oct. 12, 2012]

§ 1201.29 Dismissal without prejudice. (a) In general. Dismissal without prej-

udice is a procedural option that allows for the dismissal and subsequent re-filing of an appeal.

(b) Procedure. Dismissal without prej-udice may be granted on the judge’s own motion or upon request by either party. The decision whether to dismiss an appeal without prejudice is com-mitted to the sound discretion of the judge, and may be granted when the in-terests of fairness, due process, and ad-ministrative efficiency outweigh any prejudice to either party.

(c) Refiling. Except in certain USERRA appeals under Part 1208 in-volving the use of military leave, a de-cision dismissing an appeal without prejudice will include a date certain by which the appeal must be refiled. The judge will determine whether the ap-peal must be refiled by the appellant or whether it will be automatically refiled by the judge as of a date cer-tain. When a dismissal without preju-dice is issued over the objection of the

appellant, the appeal will be automati-cally refiled as of a date certain.

(d) Waiver. When a dismissed appeal must be refiled by the appellant, re-quests for waiver of a late filing based upon good cause will be liberally con-strued.

[77 FR 62365, Oct. 12, 2012]

PARTIES, REPRESENTATIVES, AND WITNESSES

§ 1201.31 Representatives.

(a) Procedure. A party to an appeal may be represented in any matter re-lated to the appeal. Parties may des-ignate a representative, revoke such a designation, and change such a des-ignation in a signed submission, sub-mitted as a pleading.

(b) A party may choose any rep-resentative as long as that person is willing and available to serve. The other party or parties may challenge the designation, however, on the ground that it involves a conflict of in-terest or a conflict of position. Any party who challenges the designation must do so by filing a motion with the judge within 15 days after the date of service of the notice of designation or 15 days after a party becomes aware of the conflict. The judge will rule on the motion before considering the merits of the appeal. These procedures apply equally to each designation of rep-resentative, regardless of whether the representative was the first one des-ignated by a party or a subsequently designated representative. If a rep-resentative is disqualified, the judge will give the party whose representa-tive was disqualified a reasonable time to obtain another one.

(c) The judge, on his or her own mo-tion, may disqualify a party’s rep-resentative on the grounds described in paragraph (b) of this section.

(d) As set forth in paragraphs (d) and (e) of § 1201.43 of this part, a judge may exclude a representative from all or any portion of the proceeding before him or her for contumacious conduct


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or conduct prejudicial to the adminis-tration of justice.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 62 FR 66815, Dec. 22, 1997; 63 FR 35500, June 30, 1998; 65 FR 5409, Feb. 4, 2000; 68 FR 59862, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 77 FR 62365, Oct. 12, 2012]

§ 1201.32 Witnesses; right to represen-tation.

Witnesses have the right to be rep-resented when testifying. The rep-resentative of a nonparty witness has no right to examine the witness at the hearing or otherwise participate in the development of testimony.

§ 1201.33 Federal witnesses. (a) Every Federal agency or corpora-

tion, including nonparties, must make its employees or personnel available to furnish sworn statements or to appear at a deposition or hearing when or-dered by the judge to do so. When pro-viding those statements or appearing at a deposition or at the hearing, Fed-eral employee witnesses will be in offi-cial duty status (i.e., entitled to pay and benefits including travel and per diem, where appropriate). When a de-sired witness is employed by an agency who is not a party to the Board pro-ceeding, the requesting party may avail itself of the provisions of sections 1201.81 to 1201.85 of this part regarding subpoenas to ensure the attendance of the witness. In addition, the Board and the parties will implement this provi-sion, to the maximum extent possible, to avoid conflict with other regulations governing the production of Federal employees in matters in litigation.

(b) A Federal employee who is denied the official time required by paragraph (a) of this section may file a written re-quest that the judge order the employ-ing agency to provide such official time. The judge will act on such a re-quest promptly and, where warranted, will order the agency to comply with the requirements of paragraph (a) of this section.

(c) An order obtained under para-graph (b) of this section may be en-forced as provided under subpart F of this part.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 48935, Sept. 18, 1997; 77 FR 62365, Oct. 12, 2012]

§ 1201.34 Intervenors and amicus cu-riae.

(a) Explanation of Intervention. Inter-venors are organizations or persons who want to participate in a pro-ceeding because they believe the pro-ceeding, or its outcome, may affect their rights or duties. Intervenors as a ‘‘matter of right’’ are those parties who have a statutory right to partici-pate. ‘‘Permissive’’ intervenors are those parties who may be permitted to participate if the proceeding will affect them directly and if intervention is otherwise appropriate under law. A re-quest to intervene may be made by mo-tion filed with the judge.

(b) Intervenors as a matter of right. (1) The Director of the Office of Personnel Management may intervene as a mat-ter of right under 5 U.S.C. 7701(d)(1). The motion to intervene must be filed at the earliest practicable time.

(2)(i) Except as provided in paragraph (b)(2)(ii) of this section, the Special Counsel may intervene as a matter of right under 5 U.S.C. 1212(c). The motion to intervene must be filed at the ear-liest practicable time.

(ii) The Special Counsel may not in-tervene in an action brought by an in-dividual under 5 U.S.C. 1221, or in an appeal brought by an individual under 5 U.S.C. 7701, without the consent of that individual. The Special Counsel must present evidence that the indi-vidual has consented to the interven-tion at the time the motion to inter-vene is filed.

(c) Permissive intervenors. (1) Any per-son, organization or agency may, by motion, ask the judge for permission to intervene. The motion must explain the reason why the person, organiza-tion or agency should be permitted to intervene.

(2) A motion for permission to inter-vene will be granted where the re-quester will be affected directly by the outcome of the proceeding. Any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may request permission to in-tervene. A judge’s denial of a motion for permissive intervention may be ap-pealed to the Board under § 1201.91 of this part.


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5 CFR Ch. II (1–1–16 Edition) § 1201.35

(d) Role of intervenors. Intervenors have the same rights and duties as par-ties, with the following two exceptions:

(1) Intervenors do not have an inde-pendent right to a hearing; and

(2) Permissive intervenors may par-ticipate only on the issues affecting them. The judge is responsible for de-termining the issues on which permis-sive intervenors may participate.

(e) Amicus curiae. (1) An amicus cu-riae is a person or organization who, although not a party to an appeal, gives advice or suggestions by filing a brief with the judge or the Board re-garding an appeal. Any person or orga-nization, including those who do not qualify as intervenors, may request permission to file an amicus brief. The Board may solicit amicus briefs on its own motion.

(2) A request to file an amicus curiae brief must include a statement of the person’s or organization’s interest in the appeal and how the brief will be relevant to the issues involved.

(3) The request may be granted, in the discretion of the judge or the Board, if the person or organization has a legitimate interest in the pro-ceedings, and such participation will not unduly delay the outcome and may contribute materially to the proper disposition thereof.

(4) The amicus curiae shall submit its brief within the time limits set by the judge or the Board and must comply with any further orders by the judge or the Board.

(5) An amicus curiae is not a party to the proceeding and may not participate in any way in the conduct of the hear-ing, including the presentation of evi-dence or the examination of witnesses. The Board, in its discretion, may invite an amicus curiae to participate in oral argument in proceedings in which oral argument is scheduled.

[54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62365, Oct. 12, 2012]

§ 1201.35 Substituting parties.

(a) If an appellant dies or is other-wise unable to pursue the appeal, the processing of the appeal will only be completed upon substitution of a prop-er party. Substitution will not be per-mitted where the interests of the ap-

pellant have terminated because of the appellant’s death or other disability.

(b) The representative or proper party must file a motion for substi-tution within 90 days after the death or other disabling event, except for good cause shown.

(c) In the absence of a timely substi-tution of a party, the processing of the appeal may continue if the interests of the proper party will not be prejudiced.

§ 1201.36 Consolidating and joining ap-peals.

(a) Explanation. (1) Consolidation oc-curs when the appeals of two or more parties are united for consideration be-cause they contain identical or similar issues. For example, individual appeals rising from a single reduction in force might be consolidated.

(2) Joinder occurs when one person has filed two or more appeals and they are united for consideration. For exam-ple, a judge might join an appeal chal-lenging a 30-day suspension with a pending appeal challenging a subse-quent removal if the same appellant filed both appeals.

(b) Action by judge. A judge may con-solidate or join cases on his or her own motion or on the motion of a party if doing so would:

(1) Expedite processing of the cases; and

(2) Not adversely affect the interests of the parties.

(c) Any objection to a motion for consolidation or joinder must be filed within 10 days of the date of service of the motion.


§ 1201.37 Witness fees.

(a) Federal employees. Employees of a Federal agency or corporation testi-fying in any Board proceeding or mak-ing a statement for the record will be in official duty status and will not re-ceive witness fees.

(b) Other witnesses. Other witnesses (whether appearing voluntarily or under subpoena) shall be paid the same fee and mileage allowances which are paid subpoenaed witnesses in the courts of the United States.


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(c) Payment of witness fees and travel costs. The party requesting the pres-ence of a witness must pay that wit-ness’ fees. Those fees must be paid or offered to the witness at the time the subpoena is served, or, if the witness appears voluntarily, at the time of ap-pearance. A Federal agency or corpora-tion is not required to pay or offer wit-ness fees in advance.

(d) A witness who is denied the wit-ness fees and travel costs required by paragraphs (b) and (c) of this section may file a written request that the judge order the party who requested the presence of the witness to provide such fees and travel costs. The judge will act on such a request promptly and, where warranted, will order the party to comply with the requirements of paragraphs (b) and (c) of this sec-tion.

(e) An order obtained under para-graph (d) of this section may be en-forced as provided under subpart F of this part.

[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 59 FR 65235, Dec. 19, 1994; 62 FR 17045, Apr. 9, 1997; 73 FR 6833, Feb. 6, 2008]

JUDGES

§ 1201.41 Judges.

(a) Exercise of authority. Judges may exercise authority as provided in para-graphs (b) and (c) of this section on their own motion or on the motion of a party, as appropriate.

(b) Authority. Judges will conduct fair and impartial hearings and will issue timely and clear decisions based on statutes and legal precedents. They will have all powers necessary to that end unless those powers are otherwise limited by law. Judges’ powers include, but are not limited to, the authority to:

(1) Administer oaths and affirma-tions;

(2) Issue subpoenas under § 1201.81 of this part;

(3) Rule on offers of proof and receive relevant evidence;

(4) Rule on discovery motions under § 1201.73 of this part;

(5) After notice to the parties, order a hearing on his or her own initiative if

the judge determines that a hearing is necessary:

(i) To resolve an important issue of credibility;

(ii) To ensure that the record on sig-nificant issues is fully developed; or

(iii) To otherwise ensure a fair and just adjudication of the case;

(6) Convene a hearing as appropriate, regulate the course of the hearing, maintain decorum, and exclude any disruptive persons from the hearing;

(7) Exclude any person from all or any part of the proceeding before him or her as provided under § 1201.31(d) of this part;

(8) Rule on all motions, witness and exhibit lists, and proposed findings;

(9) Require the parties to file memo-randa of law and to present oral argu-ment with respect to any question of law;

(10) Order the production of evidence and the appearance of witnesses whose testimony would be relevant, material, and nonrepetitious;

(11) Impose sanctions as provided under § 1201.43 of this part;

(12) Hold prehearing conferences for the settlement and simplification of issues;

(13) Require that all persons who can be identified from the record as being clearly and directly affected by a pend-ing retirement-related case be notified of the appeal and of their right to re-quest intervention so that their inter-ests can be considered in the adjudica-tion;

(14) Issue any order that may be nec-essary to protect a witness or other in-dividual from harassment and provide for enforcement of such order in ac-cordance with subpart F;

(15) Issue initial decisions; and (16) Determine, in decisions in which

the appellant is the prevailing party, whether the granting of interim relief is appropriate.

(c) Settlement—(1) Settlement discus-sion. The judge may initiate attempts to settle the appeal informally at any time. The parties may agree to waive the prohibitions against ex parte com-munications during settlement discus-sions, and they may agree to any lim-its on the waiver.

(2) Agreement. If the parties agree to settle their dispute, the settlement


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5 CFR Ch. II (1–1–16 Edition) § 1201.42

agreement is the final and binding res-olution of the appeal, and the judge will dismiss the appeal with prejudice.

(i) If the parties offer the agreement for inclusion in the record, and if the judge approves the agreement, it will be made a part of the record, and the Board will retain jurisdiction to ensure compliance with the agreement.

(ii) If the agreement is not entered into the record, the Board will not re-tain jurisdiction to ensure compliance.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 62689, Nov. 25, 1997; 63 FR 35500, June 30, 1998; 77 FR 62366, Oct. 12, 2012]

§ 1201.42 Disqualifying a judge.

(a) If a judge considers himself or herself disqualified, he or she will with-draw from the case, state on the record the reasons for doing so, and another judge will be promptly assigned.

(b) A party may file a motion asking the judge to withdraw on the basis of personal bias or other disqualification. This motion must be filed as soon as the party has reason to believe there is a basis for disqualification. The rea-sons for the request must be set out in an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.)

(c) If the judge denies the motion, the party requesting withdrawal may re-quest certification of the issue to the Board as an interlocutory appeal under § 1201.91 of this part. Failure to request certification is considered a waiver of the request for withdrawal.


§ 1201.43 Sanctions.

The judge may impose sanctions upon the parties as necessary to serve the ends of justice. This authority cov-ers, but is not limited to, the cir-cumstances set forth in paragraphs (a), (b), (c), (d), and (e) of this section. Be-fore imposing a sanction, the judge shall provide appropriate prior warn-ing, allow a response to the actual or proposed sanction when feasible, and document the reasons for any resulting sanction in the record.

(a) Failure to comply with an order. When a party fails to comply with an order, the judge may:

(1) Draw an inference in favor of the requesting party with regard to the in-formation sought;

(2) Prohibit the party failing to com-ply with the order from introducing evidence concerning the information sought, or from otherwise relying upon testimony related to that information;

(3) Permit the requesting party to in-troduce secondary evidence concerning the information sought; and

(4) Eliminate from consideration any appropriate part of the pleadings or other submissions of the party that fails to comply with the order.

(b) Failure to prosecute or defend ap-peal. If a party fails to prosecute or de-fend an appeal, the judge may dismiss the appeal with prejudice or rule in favor of the appellant.

(c) Failure to make timely filing. The judge may refuse to consider any mo-tion or other pleading that is not filed in a timely fashion in compliance with this subpart.

(d) Exclusion of a representative or other person. A judge may exclude or limit the participation of a representa-tive or other person in the case for con-tumacious conduct or conduct preju-dicial to the administration of justice. When the judge excludes a party’s rep-resentative, the judge will afford the party a reasonable time to obtain an-other representative before proceeding with the case.

(e) Cancellation, suspension, or termi-nation of hearing. A judge may cancel a scheduled hearing, or suspend or termi-nate a hearing in progress, for con-tumacious conduct or conduct preju-dicial to the administration of justice on the part of the appellant or the ap-pellant’s representative. If the judge suspends a hearing, the parties must be given notice as to when the hearing will resume. If the judge cancels or ter-minates a hearing, the judge must set a reasonable time during which the record will be kept open for receipt of written submissions.


HEARINGS

§ 1201.51 Scheduling the hearing. (a) The hearing will be scheduled not

earlier than 15 days after the date of


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the hearing notice unless the parties agree to an earlier date. The agency, upon request of the judge, must provide appropriate hearing space.

(b) The judge may change the time, date, or place of the hearing, or sus-pend, adjourn, or continue the hearing. The change will not require the 15-day notice provided in paragraph (a) of this section.

(c) Either party may file a motion for postponement of the hearing. The mo-tion must be made in writing and must either be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See appendix IV.) The affidavit or sworn statement must describe the rea-sons for the request. The judge will grant the request for postponement only upon a showing of good cause.

(d) The Board has established certain approved hearing locations, which are listed on the Board’s public Web site (www.mspb.gov). The judge will advise parties of these hearing sites as appro-priate. Parties, for good cause, may file motions requesting a different hearing location. Rulings on those motions will be based on a showing that a different location will be more advantageous to all parties and to the Board.


§ 1201.52 Public hearings.

(a) Closing the hearing. Hearings are generally open to the public; however, the judge may order a hearing or any part of a hearing closed when doing so would be in the best interests of a party, a witness, the public, or any other person affected by the pro-ceeding. Any order closing the hearing will set out the reasons for the judge’s decision. Any objections to the order will be made a part of the record.

(b) Electronic devices. Absent express approval from the judge, no two-way communications devices may be oper-ated and/or powered on in the hearing room; all cell phones, text devices, and all other two-way communications de-vices shall be powered off in the hear-ing room. Further, no cameras, record-ing devices, and/or transmitting de-vices may be operated, operational,

and/or powered on in the hearing room without the consent of the judge.

[77 FR 62366, Oct. 12, 2012]

§ 1201.53 Record of proceedings.

(a) Recordings. A recording of the hearing is generally prepared by a court reporter, under the judge’s guid-ance. Such a recording is included with the Board’s copy of the appeal file and serves as the official hearing record. Judges may prepare recordings in some hearings, such as those conducted tele-phonically.

(b) Transcripts. A ‘‘transcript’’ refers not only to printed copies of the hear-ing testimony, but also to electronic versions of such documents. Along with recordings, a transcript prepared by the court reporter is accepted by the Board as the official hearing record. Any party may request that the court reporter prepare a full or partial tran-script, at the requesting party’s ex-pense. Judges do not prepare tran-scripts.

(c) Copies. Copies of recordings or ex-isting transcripts will be provided upon request to parties free of charge. Such requests should be made in writing to the adjudicating regional or field of-fice, or to the Clerk of the Board, as appropriate. Nonparties may request a copy of a hearing recording or existing transcript under the Freedom of Infor-mation Act (FOIA) and Part 1204 of the Board’s regulations. A nonparty may request a copy by writing to the appro-priate Regional Director, the Chief Ad-ministrative Judge of the appropriate MSPB Field Office, or to the Clerk of the Board at MSPB headquarters in Washington, DC, as appropriate. Non-parties may also make FOIA requests online at https://foia.mspb.gov.

(d) Corrections to transcript. Any dis-crepancy between the transcript and the recording shall be resolved by the judge or the Clerk of the Board, as ap-propriate. Corrections to the official transcript may be made on motion by a party or on the judge’s own motion or by the Clerk of the Board, as appro-priate. Motions for corrections must be filed within 10 days after the receipt of a transcript. Corrections of the official transcript will be made only when sub-stantive errors are found by the judge


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5 CFR Ch. II (1–1–16 Edition) § 1201.55

or by the Clerk of the Board, as appro-priate.

(e) Official record. Hearing exhibits and pleadings that have been accepted into the record, the official hearing record, if a hearing is held, and all or-ders and decisions of the judge and the Board, make up the official record of the case. Other than the Board’s deci-sions, the official record is not avail-able for public inspection and copying. The official record is, however, subject to requests under both the Freedom of Information Act (5 U.S.C. 552) and the Privacy Act (5 U.S.C. 552a) pursuant to the procedures contained in 5 CFR parts 1204 and 1205.

[77 FR 62366, Oct. 12, 2012]

§ 1201.55 Motions. (a) Form. All motions, except those

made during a prehearing conference or a hearing, must be in writing. All motions must include a statement of the reasons supporting them. Written motions must be filed with the judge or the Board, as appropriate, and must be served upon all other parties in accord-ance with § 1201.26(b)(2) of this part. A party filing a motion for extension of time, a motion for postponement of a hearing, or any other procedural mo-tion must first contact the other party to determine whether there is any ob-jection to the motion, and must state in the motion whether the other party has an objection.

(b) Objection. Unless the judge pro-vides otherwise, any objection to a written motion must be filed within 10 days from the date of service of the motion. Judges, in their discretion, may grant or deny motions for exten-sions of time to file pleadings without providing any opportunity to respond to the motions.

(c) Motions for extension of time. Mo-tions for extension of time will be granted only on a showing of good cause.

(d) Motions for protective orders. A mo-tion for an order under 5 U.S.C. 1204(e)(1)(B) to protect a witness or other individual from harassment must be filed as early in the proceeding as practicable. The party seeking a pro-tective order must include a concise statement of reasons justifying the mo-tion, together with any relevant docu-

mentary evidence. An agency, other than the Office of Special Counsel, may not request such an order with respect to an investigation by the Special Counsel during the Special Counsel’s investigation. An order issued under this paragraph may be enforced in the same manner as provided under sub-part F for Board final decisions and or-ders.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997]

§ 1201.56 Burden and degree of proof. (a) Applicability. This section does not

apply to the following types of appeals which are covered by § 1201.57:

(1) An individual right of action ap-peal under the Whistleblower Protec-tion Act, 5 U.S.C. 1221;

(2) An appeal under the Veterans Em-ployment Opportunities Act, 5 U.S.C. 3330a(d);

(3) An appeal under the Uniformed Services Employment and Reemploy-ment Rights Act, 38 U.S.C. 4324, in which the appellant alleges discrimina-tion or retaliation in violation of 38 U.S.C. 4311; and

(4) An appeal under 5 CFR 353.304, in which the appellant alleges a failure to restore, improper restoration of, or failure to return following a leave of absence.

(b) Burden and degree of proof—(1) Agency. Under 5 U.S.C. 7701(c)(1), and subject to the exceptions stated in paragraph (c) of this section, the agen-cy bears the burden of proof and its ac-tion must be sustained only if:

(i) It is brought under 5 U.S.C. 4303 or 5 U.S.C. 5335 and is supported by sub-stantial evidence (as defined in § 1201.4(p)); or

(ii) It is brought under any other pro-vision of law or regulation and is sup-ported by a preponderance of the evi-dence (as defined in § 1201.4(q)).

(2) Appellant. (i) The appellant has the burden of proof, by a preponderance of the evidence (as defined in § 1201.4(q)), with respect to:

(A) Issues of jurisdiction, except for cases in which the appellant asserts a violation of his right to reemployment following military duty under 38 U.S.C. 4312–4314;

(B) The timeliness of the appeal; and (C) Affirmative defenses.


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(ii) In appeals from reconsideration decisions of the Office of Personnel Management (OPM) involving retire-ment benefits, if the appellant filed the application, the appellant has the bur-den of proving, by a preponderance of the evidence (as defined in § 1201.4(q)), entitlement to the benefits. Where OPM proves by preponderant evidence an overpayment of benefits, an appel-lant may prove, by substantial evi-dence (as defined in § 1201.4(p)), eligi-bility for waiver or adjustment.

(c) Affirmative defenses of the appel-lant. Under 5 U.S.C. 7701(c)(2), the Board is required to reverse the action of the agency, even where the agency has met the evidentiary standard stat-ed in paragraph (b) of this section, if the appellant:

(1) Shows harmful error in the appli-cation of the agency’s procedures in ar-riving at its decision (as defined in § 1201.4(r));

(2) Shows that the decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or

(3) Shows that the decision was not in accordance with law.

(d) Administrative judge. The adminis-trative judge will inform the parties of the proof required as to the issues of jurisdiction, the timeliness of the ap-peal, and affirmative defenses.

[80 FR 4496, Jan. 28, 2015]

§ 1201.57 Establishing jurisdiction in appeals not covered by § 1201.56; burden and degree of proof; scope of review.

(a) Applicability. This section applies to the following types of appeals:

(1) An individual right of action (IRA) appeal under the Whistleblower Protection Act, 5 U.S.C. 1221;

(2) A request for corrective action under the Veterans Employment Op-portunities Act (VEOA), 5 U.S.C. 3330a(d);

(3) A request for corrective action under the Uniformed Services Employ-ment and Reemployment Rights Act (USERRA), 38 U.S.C. 4324, in which the appellant alleges discrimination or re-taliation in violation of 38 U.S.C. 4311; and

(4) An appeal under 5 CFR 353.304, in which an appellant alleges a failure to restore, improper restoration of, or

failure to return following a leave of absence (denial of restoration appeal).

(b) Matters that must be supported by nonfrivolous allegations. Except for proving exhaustion of a required statu-tory complaint process and standing to appeal (paragraphs (c)(1) and (3) of this section), in order to establish jurisdic-tion, an appellant who initiates an ap-peal covered by this section must make nonfrivolous allegations (as defined in § 1201.4(s)) with regard to the sub-stantive jurisdictional elements appli-cable to the particular type of appeal he or she has initiated.

(c) Matters that must be proven by a preponderance of the evidence. An appel-lant who initiates an appeal covered by this section has the burden of proof, by a preponderance of the evidence (as de-fined in § 1201.4(q)), on the following matters:

(1) When applicable, exhaustion of a statutory complaint process that is preliminary to an appeal to the Board;

(2) Timeliness of an appeal under 5 CFR 1201.22;

(3) Standing to appeal, when disputed by the agency or questioned by the Board. (An appellant has ‘‘standing’’ when he or she falls within the class of persons who may file an appeal under the law applicable to the appeal.); and

(4) The merits of an appeal, if the ap-peal is within the Board’s jurisdiction and was timely filed.

(d) Scope of the appeal. Appeals cov-ered by this section are limited in scope. With the exception of denial of restoration appeals, the Board will not consider matters described at 5 U.S.C. 7701(c)(2) in an appeal covered by this section.

(e) Notice of jurisdictional, timeliness, and merits elements. The administrative judge will provide notice to the parties of the specific jurisdictional, timeli-ness, and merits elements that apply in a particular appeal.

(f) Additional information. For addi-tional information on IRA appeals, the reader should consult 5 CFR part 1209. For additional information on VEOA appeals, the reader should consult 5 CFR part 1208, subparts A & C. For ad-ditional information on USERRA ap-peals, the reader should consult 5 CFR part 1208, subparts A and B.


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5 CFR Ch. II (1–1–16 Edition) § 1201.58

(g) For additional information on de-nial of restoration appeals, the reader should consult 5 CFR part 353, subparts A and C.

[80 FR 4496, Jan. 28, 2015]

§ 1201.58 Order of hearing.

(a) In cases in which the agency has taken an action against an employee, the agency will present its case first.

(b) The appellant will proceed first at hearings convened on the issues of:

(1) Jurisdiction; (2) Timeliness; or (3) Office of Personnel Management

disallowance of retirement benefits, when the appellant applied for those benefits.

(c) The judge may vary the normal order of presenting evidence.

[54 FR 53504, Dec. 29, 1989. Redesignated at 80 FR 4496, Jan. 28, 2015]

§ 1201.59 Closing the record.

(a) When there is a hearing, the record ordinarily will close at the con-clusion of the hearing. When the judge allows the parties to submit argument, briefs, or documents previously identi-fied for introduction into evidence, however, the record will remain open for as much time as the judge grants for that purpose.

(b) If the appellant waives the right to a hearing, the record will close on the date the judge sets as the final date for the receipt or filing of submissions of the parties.

(c) Once the record closes, additional evidence or argument will ordinarily not be accepted unless:

(1) The party submitting it shows that the evidence or argument was not readily available before the record closed; or

(2) It is in rebuttal to new evidence or argument submitted by the other party just before the record closed.

(d) The judge will include in the record any supplemental citations re-ceived from the parties or approved corrections of the transcript, if one has been prepared.

[54 FR 53504, Dec. 29, 1989, as amended at 77 FR 62366, Oct. 12, 2012. Redesignated at 80 FR 4496, Jan. 28, 2015]

EVIDENCE

§ 1201.61 Exclusion of evidence and testimony.

Any evidence and testimony that is offered in the hearing and excluded by the judge will be described, and that description will be made a part of the record.

§ 1201.63 Stipulations.

The parties may stipulate to any matter of fact. The stipulation will sat-isfy a party’s burden of proving the fact alleged.

§ 1201.64 Official notice.

Official notice is the Board’s or judge’s recognition of certain facts without requiring evidence to be intro-duced establishing those facts. The judge, on his or her own motion or on the motion of a party, may take offi-cial notice of matters of common knowledge or matters that can be verified. The parties may be given an opportunity to object to the taking of official notice. The taking of official notice of any fact satisfies a party’s burden of proving that fact.

DISCOVERY

§ 1201.71 Purpose of discovery.

Proceedings before the Board will be conducted as expeditiously as possible with due regard to the rights of the parties. Discovery is designed to enable a party to obtain relevant information needed to prepare the party’s case. These regulations are intended to pro-vide a simple method of discovery. They will be interpreted and applied so as to avoid delay and to facilitate adju-dication of the case. Parties are ex-pected to start and complete discovery with a minimum of Board intervention. Discovery requests and responses thereto are not to be filed in the first instance with the Board. They are only filed with the Board in connection with a motion to compel discovery under 1201.73(c) of this part, with a motion to subpoena discovery under 1201.73(d) of this part, or as substantive evidence to be considered in the appeal.



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§ 1201.72 Explanation and scope of dis-covery.

(a) Explanation. Discovery is the process, apart from the hearing, by which a party may obtain relevant in-formation, including the identification of potential witnesses, from another person or a party, that the other per-son or party has not otherwise pro-vided. Relevant information includes information that appears reasonably calculated to lead to the discovery of admissible evidence. This information is obtained to assist the parties in pre-paring and presenting their cases. The Federal Rules of Civil Procedure may be used as a general guide for discovery practices in proceedings before the Board. Those rules, however, are in-structive rather than controlling.

(b) Scope. Discovery covers any non-privileged matter that is relevant to the issues involved in the appeal, in-cluding the existence, description, na-ture, custody, condition, and location of documents or other tangible things, and the identity and location of per-sons with knowledge of relevant facts. Discovery requests that are directed to nonparties and nonparty Federal agen-cies and employees are limited to in-formation that appears directly mate-rial to the issues involved in the ap-peal.

(c) Methods. Parties may use one or more of the methods provided under the Federal Rules of Civil Procedure. These methods include written inter-rogatories to parties, depositions, re-quests for production of documents or things for inspection or copying, and requests for admission.

(d) Limitations. The judge may limit the frequency or extent of use of the discovery methods permitted by these regulations. Such limitations may be imposed if the judge finds that:

(1) The discovery sought is cumu-lative or duplicative, or is obtainable from some other source that is more convenient, less burdensome, or less expensive;

(2) The party seeking discovery has had sufficient opportunity by discovery in the action to obtain the information sought; or

(3) The burden or expense of the pro-posed discovery outweighs its likely benefit.

[68 FR 54651, Sept. 18, 2003, as amended at 73 FR 18150, Apr. 3, 2008; 73 FR 21415, Apr. 21, 2008]

§ 1201.73 Discovery procedures. (a) Initiating discovery. A party seek-

ing discovery must start the process by serving a request for discovery on the representative of the party or nonparty, or, if there is no representa-tive, on the party or nonparty them-selves. The request for discovery must state the time limit for responding, as prescribed in 1201.73(d) of this part, and must specify the time and place of the taking of the deposition, if applicable. When a party directs a request for dis-covery to the official or employee of a Federal agency that is a party, the agency must make the officer or em-ployee available on official time to re-spond to the request and must assist the officer or employee as necessary in providing relevant information that is available to the agency.

(b) Responses to discovery requests. A party or nonparty must answer a dis-covery request within the time pro-vided under paragraph (d)(2) of this sec-tion, either by furnishing to the re-questing party the information re-quested or agreeing to make deponents available to testify within a reasonable time, or by stating an objection to the particular request and the reasons for the objection. Parties and nonparties may respond to discovery requests by electronic mail if authorized by the re-questing party.

(c) Motions to compel or issue a sub-poena. (1) If a party fails or refuses to respond in full to a discovery request, the requesting party may file a motion to compel discovery. If a nonparty fails or refuses to respond in full to a dis-covery request, the requesting party may file a motion for the issuance of a subpoena directed to the individual or entity from which the discovery is sought under the procedures described in 1201.81 of this part. The requesting party must serve a copy of the motion on the other party or nonparty. Before filing any motion to compel or issue a subpoena, the moving party shall dis-cuss the anticipated motion with the


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5 CFR Ch. II (1–1–16 Edition) § 1201.74

opposing party or nonparty, and all those involved shall make a good faith effort to resolve the discovery dispute and narrow the areas of disagreement. The motion shall include:

(i) A copy of the original request and a statement showing that the informa-tion sought is discoverable under sec-tion 1201.72;

(ii) A copy of the response to the re-quest (including the objections to dis-covery) or, where appropriate, a state-ment that no response has been re-ceived, along with an affidavit or sworn statement under 28 U.S.C. 1746 sup-porting the statement (See appendix IV to part 1201); and

(iii) A statement that the moving party has discussed or attempted to discuss the anticipated motion with the nonmoving party or nonparty and made a good faith effort to resolve the discovery dispute and narrow the areas of disagreement.

(2) The party or nonparty from whom discovery was sought may respond to the motion to compel or the motion to issue a subpoena within the time limits stated in paragraph (d)(3) of this sec-tion.

(d) Time limits. (1) Unless otherwise directed by the judge, parties must serve their initial discovery requests within 30 days after the date on which the judge issues an order to the re-spondent agency to produce the agency file and response.

(2) A party or nonparty must serve a response to a discovery request promptly, but not later than 20 days after the date of service of the request or order of the judge. Any discovery re-quests following the initial request must be served within 10 days of the date of service of the prior response, unless the parties are otherwise di-rected by the judge. Deposition wit-nesses must give their testimony at the time and place stated in the re-quest for deposition or in the subpoena, unless the parties agree on another time or place.

(3) Any motion for an order to com-pel or issue a subpoena must be filed with the judge within 10 days of the date of service of objections or, if no response is received, within 10 days after the time limit for response has expired. Any pleading in opposition to

a motion to compel or subpoena dis-covery must be filed with the judge within 10 days of the date of service of the motion.

(4) Discovery must be completed within the time period designated by the judge or, if no such period is des-ignated, no later than the prehearing or close of record conference.

(e) Limits on the number of discovery requests. (1) Absent prior approval by the judge, interrogatories served by parties upon another party or a nonparty may not exceed 25 in number, including all discrete subparts.

(2) Absent prior approval by the judge or agreement by the parties, each party may not take more than 10 depo-sitions.

(3) Requests to exceed the limitations set forth in paragraphs (e)(1) and (e)(2) of this section may be granted at the discretion of the judge. In considering such requests, the judge shall consider the factors identified in § 1201.72(d) of this part.

[77 FR 62367, Oct. 12, 2012]

§ 1201.74 Orders for discovery. (a) Motion for an order compelling dis-

covery. Motions for orders compelling discovery and motions for the appear-ance of nonparties must be filed with the judge in accordance with § 1201.73(c)(1) and (d)(3). An administra-tive judge may deny a motion to com-pel discovery if a party fails to comply with the requirements of 5 CFR 1201.73(c)(1) and (d)(3).

(b) Content of order. Any order issued will include, where appropriate:

(1) A provision that the person to be deposed must be notified of the time and place of the deposition;

(2) Any conditions or limits con-cerning the conduct or scope of the proceedings or the subject matter that may be necessary to prevent undue delay or to protect a party or other in-dividual or entity from undue expense, embarrassment, or oppression;

(3) Limits on the time for conducting depositions, answering written inter-rogatories, or producing documentary evidence; and

(4) Other restrictions upon the dis-covery process that the judge sets.

(c) Noncompliance. The judge may im-pose sanctions under § 1201.43 of this


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part for failure to comply with an order compelling discovery.

[54 FR 53504, Dec. 29, 1989, as amended at 73 FR 18151, Apr. 3, 2008; 78 FR 23458, Apr. 19, 2013]

§ 1201.75 Taking depositions. Depositions may be taken by any

method agreed upon by the parties. The person providing information is subject to penalties for intentional false statements.

SUBPOENAS

§ 1201.81 Requests for subpoenas. (a) Request. Parties who wish to ob-

tain subpoenas that would require the attendance and testimony of witnesses, or subpoenas that would require the production of documents or other evi-dence under 5 U.S.C. 1204(b)(2)(A), should file their motions for those sub-poenas with the judge. The Board has authority under 5 U.S.C. 1204(b)(2)(A) to issue a subpoena requiring the at-tendance and testimony of any indi-vidual regardless of location and for the production of documentary or other evidence from any place in the United States, any territory or posses-sion of the United States, the Common-wealth of Puerto Rico or the District of Columbia. Subpoenas are not ordi-narily required to obtain the attend-ance of Federal employees as wit-nesses.

(b) Form. Parties requesting sub-poenas must file their requests, in writing, with the judge. Each request must identify specifically the books, papers, or testimony desired.

(c) Relevance. The request must be supported by a showing that the evi-dence sought is directly material to the issues involved in the appeal.

(d) Rulings. Any judge who does not have the authority to issue subpoenas will refer the request to an official with authority to rule on the request, with a recommendation for decision. The official to whom the request is re-ferred will rule on the request prompt-ly. Judges who have the authority to rule on these requests themselves will do so directly.

[54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30608, May 27, 2005; 77 FR 62367, Oct. 12, 2012]

§ 1201.82 Motions to quash subpoenas. Any person to whom a subpoena is di-

rected, or any party, may file a motion to quash or limit the subpoena. The motion must be filed with the judge, and it must include the reasons why compliance with the subpoena should not be required or the reasons why the subpoena’s scope should be limited.

§ 1201.83 Serving subpoenas. (a) Any person who is at least 18

years of age and who is not a party to the appeal may serve a subpoena. The means prescribed by applicable state law are sufficient. The party who re-quested the subpoena, and to whom the subpoena has been issued, is respon-sible for serving the subpoena.

(b) A subpoena directed to an indi-vidual outside the territorial jurisdic-tion of any court of the United States may be served in the manner described by the Federal Rules of Civil Procedure for service of a subpoena in a foreign country.

§ 1201.84 Proof of service. The person who has served the sub-

poena must certify that he or she did so:

(a) By delivering it to the witness in person,

(b) By registered or certified mail, or (c) By delivering the subpoena to a

responsible person (named in the docu-ment certifying the delivery) at the residence or place of business (as ap-propriate) of the person for whom the subpoena was intended. The document in which the party makes this certification also must in-clude a statement that the prescribed fees have been paid or offered.

§ 1201.85 Enforcing subpoenas. (a) If a person who has been served

with a Board subpoena fails or refuses to comply with its terms, the party seeking compliance may file a written motion for enforcement with the judge or make an oral motion for enforce-ment while on the record at a hearing. That party must present the document certifying that the subpoena was served and, except where the witness was required to appear before the judge, must submit an affidavit or


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5 CFR Ch. II (1–1–16 Edition) § 1201.91

sworn statement under 28 U.S.C. 1746 (see appendix IV) describing the failure or refusal to obey the subpoena. The Board, in accordance with 5 U.S.C. 1204(c), may then ask the appropriate United States district court to enforce the subpoena. If the person who has failed or refused to comply with a Board subpoena is located in a foreign country, the U.S. District Court for the District of Columbia will have jurisdic-tion to enforce compliance, to the ex-tent that a U.S. court can assert juris-diction over an individual in the for-eign country.

(b) Upon application by the Special Counsel, the Board may seek court en-forcement of a subpoena issued by the Special Counsel in the same manner in which it seeks enforcement of Board subpoenas, in accordance with 5 U.S.C. 1212(b)(3).

INTERLOCUTORY APPEALS

§ 1201.91 Explanation.

An interlocutory appeal is an appeal to the Board of a ruling made by a judge during a proceeding. The judge may permit the appeal if he or she de-termines that the issue presented in it is of such importance to the proceeding that it requires the Board’s immediate attention. Either party may make a motion for certification of an inter-locutory appeal. In addition, the judge, on his or her own motion, may certify an interlocutory appeal to the Board. If the appeal is certified, the Board will decide the issue and the judge will act in accordance with the Board’s deci-sion.

§ 1201.92 Criteria for certifying inter-locutory appeals.

The judge will certify a ruling for re-view only if the record shows that:

(a) The ruling involves an important question of law or policy about which there is substantial ground for dif-ference of opinion; and

(b) An immediate ruling will materi-ally advance the completion of the pro-ceeding, or the denial of an immediate ruling will cause undue harm to a party or the public.

§ 1201.93 Procedures.

(a) Motion for certification. A party seeking the certification of an inter-locutory appeal must file a motion for certification within 10 days of the date of the ruling to be appealed. The mo-tion must be filed with the judge, and must state why certification is appro-priate and what the Board should do and why. The opposing party may file objections within 10 days of the date of service of the motion, or within any other time period that the judge may designate.

(b) Certification and review. The judge will grant or deny a motion for certifi-cation within five days after receiving all pleadings or, if no response is filed, within 10 days after receiving the mo-tion. If the judge grants the motion for certification, he or she will refer the record to the Board. If the judge denies the motion, the party that sought cer-tification may raise the matter at issue in a petition for review filed after the initial decision is issued, in accord-ance with §§ 1201.113 and 1201.114 of this part.

(c) Stay of appeal. The judge has the authority to proceed with or to stay the processing of the appeal while an interlocutory appeal is pending with the Board. The passage of time during any stay granted under this section is not deemed, or accounted for, as a case suspension under § 1201.28 of this part. If the judge does not stay the appeal, the Board may do so while an inter-locutory appeal is pending with it.


EX PARTE COMMUNICATIONS

§ 1201.101 Explanation and definitions.

(a) Explanation. An ex parte commu-nication is an oral or written commu-nication between a decision-making of-ficial of the Board and an interested party to a proceeding, when that com-munication is made without providing the other parties to the appeal with a chance to participate. Not all ex parte communications are prohibited. Those that involve the merits of the case, or those that violate rules requiring sub-missions to be in writing, are prohib-ited. Accordingly, interested parties


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may ask about such matters as the sta-tus of a case, when it will be heard, and methods of submitting evidence to the Board. Parties may not ask about mat-ters such as what defense they should use or whether their evidence is ade-quate, and they may not make a sub-mission orally if that submission is re-quired to be made in writing.

(b) Definitions for purposes of this sec-tion—(1) Interested party includes:

(i) Any party or representative of a party involved in a proceeding before the Board; and

(ii) Any other person who might be affected by the outcome of a pro-ceeding before the Board.

(2) Decision-making official means any judge, officer, or other employee of the Board designated to hear and decide cases except when such judge, officer, or other employee of the Board is serv-ing as a mediator or settlement judge who is not the adjudicating judge.


§ 1201.102 Prohibition on ex parte communications.

Except as otherwise provided in § 1201.41(c)(1) of this part, ex parte com-munications that concern the merits of any matter before the Board for adju-dication, or that otherwise violate rules requiring written submissions, are prohibited from the time the per-sons involved know that the Board may consider the matter until the time the Board has issued a final decision on the matter.

§ 1201.103 Placing communications in the record; sanctions.

(a) Any communication made in vio-lation of § 1201.102 of this part will be made a part of the record. If the com-munication was oral, a memorandum stating the substance of the discussion will be placed in the record.

(b) If there has been a violation of § 1201.102 of this part, the judge or the Clerk of the Board, as appropriate, will notify the parties in writing that the regulation has been violated, and will give the parties 10 days to file a re-sponse.

(c) The following sanctions are avail-able:

(1) Parties. The offending party may be required to show why, in the inter-est of justice, the claim or motion should not be dismissed, denied, or oth-erwise adversely affected.

(2) Other persons. The Board may in-voke appropriate sanctions against other offending parties.

[54 FR 53504, Dec. 29, 1989, as amended at 70 FR 30609, May 27, 2005]

FINAL DECISIONS

§ 1201.111 Initial decision by judge. (a) The judge will prepare an initial

decision after the record closes and will serve that decision on all parties to the appeal, including named parties, permissive intervenors, and interve-nors of right. The Board satisfies its legal obligation under 5 U.S.C. 7701(b)(1) by making electronic copies of initial decisions available to the Of-fice of Personnel Management.

(b) Each initial decision will contain: (1) Findings of fact and conclusions

of law upon all the material issues of fact and law presented on the record;

(2) The reasons or bases for those findings and conclusions;

(3) An order making final disposition of the case, including appropriate re-lief;

(4) A statement, if the appellant is the prevailing party, as to whether in-terim relief is provided effective upon the date of the decision, pending the outcome of any petition for review filed by another party under subpart C of this part;

(5) The date upon which the decision will become final (a date that, for pur-poses of this section, is 35 days after issuance); and

(6) A statement of any further proc-ess available, including, as appropriate, a petition for review under § 1201.114 of this part, a petition for enforcement under § 1201.182, a motion for attorney fees under § 1201.203, a motion to ini-tiate an addendum proceeding for con-sequential damages or compensatory damages under § 1201.204, and a petition for judicial review.

(c) Interim relief. (1) Under 5 U.S.C. 7701(b)(2), if the appellant is the pre-vailing party, the initial decision will provide appropriate interim relief to the appellant effective upon the date of


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5 CFR Ch. II (1–1–16 Edition) § 1201.112

the initial decision and remaining in effect until the date of the final order of the Board on any petition for review, unless the judge determines that the granting of interim relief is not appro-priate. The agency may decline to re-turn the appellant to his or her place of employment if it determines that the return or presence of the appellant will be unduly disruptive to the work envi-ronment. However, pay and benefits must be provided.

(2) An initial decision that orders in-terim relief shall include a section which will provide the appellant spe-cific notice that the relief ordered in the decision must be provided by the agency effective as of the date of the decision if a party files a petition for review. If the relief ordered in the ini-tial decision requires the agency to ef-fect an appointment, the notice re-quired by this section will so state, will specify the title and grade of the ap-pointment, and will specifically advise the appellant of his right to receive pay and benefits while any petition for review is pending, even if the agency determines that the appellant’s return to or presence in the workplace would be unduly disruptive.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 17045, Apr. 9, 1997; 63 FR 41179, Aug. 3, 1998; 64 FR 27900, May 24, 1999; 77 FR 62367, Oct. 12, 2012]

§ 1201.112 Jurisdiction of judge. (a) After issuing the initial decision,

the judge will retain jurisdiction over a case only to the extent necessary to:

(1) Correct the transcript; when one is obtained;

(2) Rule on a request by the appellant for attorney fees, consequential dam-ages, or compensatory damages under subpart H of this part;

(3) Process any petition for enforce-ment filed under subpart F of this part;

(4) Vacate an initial decision to ac-cept into the record a settlement agreement that is filed prior to the deadline for filing a petition for review, even if the settlement agreement is not received until after the date when the initial decision becomes final under § 1201.113 of this part.

(b) Nothing is this section affects the time limits prescribed in § 1201.113 re-

garding the finality of an initial deci-sion or the time allowed for filing a pe-tition for review.

[59 FR 22125, Apr. 29, 1994, as amended at 62 FR 17045, Apr. 9, 1997; 70 FR 30609, May 27, 2005; 77 FR 62368, Oct. 12, 2012; 78 FR 23458, Apr. 19, 2013]

§ 1201.113 Finality of decision.

The initial decision of the judge will become the Board’s final decision 35 days after issuance. Initial decisions are not precedential.

(a) Exceptions. The initial decision will not become the Board’s final deci-sion if within the time limit for filing specified in 1201.114 of this part, any party files a petition for review or, if no petition for review is filed, files a request that the initial decision be va-cated for the purpose of accepting a settlement agreement into the record.

(b) Petition for review denied. If the Board denies all petitions for review, the initial decision will become final when the Board issues its last decision denying a petition for review.

(c) Petition for review granted or case reopened. If the Board grants a petition for review or a cross petition for re-view, or reopens or dismisses a case, the decision of the Board is final if it disposes of the entire action.

(d) Extensions. The Board may extend the time limit for filing a petition for good cause shown as specified in § 1201.114 of this part.

(e) Exhaustion. Administrative rem-edies are exhausted when a decision be-comes final in accordance with this section.

(f) When the Board, by final decision or order, finds there is reason to be-lieve a current Federal employee may have committed a prohibited personnel practice described at 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), the Board will refer the matter to the Spe-cial Counsel to investigate and take appropriate action under 5 U.S.C. 1215.

[54 FR 53504, Dec. 29, 1989, as amended at 62 FR 59992, Nov. 6, 1997; 77 FR 62368, Oct. 12, 2012; 78 FR 39545, July 2, 2013]


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Subpart C—Petitions for Review of Initial Decisions

§ 1201.114 Petition and cross petition for review—content and procedure.

(a) Pleadings allowed. Pleadings al-lowed on review include a petition for review, a cross petition for review, a response to a petition for review, a re-sponse to a cross petition for review, and a reply to a response to a petition for review.

(1) A petition for review is a pleading in which a party contends that an ini-tial decision was incorrectly decided in whole or in part.

(2) A cross petition for review has the same meaning as a petition for review but is used to describe a pleading that is filed by a party when another party has already filed a timely petition for review.

(3) A response to a petition for review and a cross petition for review may be contained in a single pleading.

(4) A reply to a response to a petition for review is limited to the factual and legal issues raised by another party in the response to the petition for review. It may not raise new allegations of error.

(5) No pleading other than the ones described in this paragraph will be ac-cepted unless the party files a motion with and obtains leave from the Clerk of the Board. The motion must describe the nature of and need for the pleading.

(b) Contents of petition or cross petition for review. A petition or cross petition for review states a party’s objections to the initial decision, including all of the party’s legal and factual argu-ments, and must be supported by ref-erences to applicable laws or regula-tions and by specific references to the record. Any petition or cross petition for review that contains new evidence or argument must include an expla-nation of why the evidence or argu-ment was not presented before the record below closed (see § 1201.58 of this part). A petition or cross petition for review should not include documents that were part of the record below, as the entire administrative record will be available to the Board.

(c) Who may file. Any party to the proceeding, the Director of the Office of Personnel Management (OPM), or

the Special Counsel (under 5 U.S.C. 1212(c)) may file a petition or cross pe-tition for review. The Director of OPM may request review only if he or she believes that the decision is erroneous and will have a substantial impact on any civil service law, rule, or regula-tion under OPM’s jurisdiction. 5 U.S.C. 7701(e)(2). All submissions to the Board must contain the signature of the party or of the party’s designated rep-resentative.

(d) Place for filing. All pleadings de-scribed in paragraph (a) and all mo-tions and pleadings associated with them must be filed with the Clerk of the Merit Systems Protection Board, 1615 M Street NW., Washington, DC 20419, by commercial or personal deliv-ery, by facsimile, by mail, or by elec-tronic filing in accordance with 1201.14 of this part.

(e) Time for filing. Any petition for re-view must be filed within 35 days after the date of issuance of the initial deci-sion or, if the petitioner shows that the initial decision was received more than 5 days after the date of issuance, with-in 30 days after the date the petitioner received the initial decision. For pur-poses of this section, the date that the petitioner receives the initial decision is determined according to the stand-ard set forth at § 1201.22(b)(3) of this part, pertaining to an appellant’s re-ceipt of a final agency decision. If the petitioner is represented, the 30-day time period begins to run upon receipt of the initial decision by either the representative or the petitioner, which-ever comes first. A cross petition for review must be filed within 25 days of the date of service of the petition for review. Any response to a petition or cross petition for review must be filed within 25 days after the date of service of the petition or cross petition. Any reply to a response to a petition for re-view must be filed within 10 days after the date of service of the response to the petition for review.

(f) Extension of time to file. The Board will grant a motion for extension of time to file a pleading described in paragraph (a) only if the party submit-ting the motion shows good cause. Mo-tions for extensions must be filed with the Clerk of the Board on or before the date on which the petition or other


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5 CFR Ch. II (1–1–16 Edition) § 1201.114

pleading is due. The Board, in its dis-cretion, may grant or deny those mo-tions without providing the other par-ties the opportunity to comment on them. A motion for an extension must be accompanied by an affidavit or sworn statement under 28 U.S.C. 1746. (See Appendix IV.) The affidavit or sworn statement must include a spe-cific and detailed description of the cir-cumstances alleged to constitute good cause, and it should be accompanied by any available documentation or other evidence supporting the matters as-serted.

(g) Late filings. Any pleading de-scribed in paragraph (a) of this section that is filed late must be accompanied by a motion that shows good cause for the untimely filing, unless the Board has specifically granted an extension of time under paragraph (f) of this sec-tion, or unless a motion for extension is pending before the Board. The mo-tion must be accompanied by an affi-davit or sworn statement under 28 U.S.C. 1746. (See Appendix IV.) The affi-davit or sworn statement must include: The reasons for failing to request an extension before the deadline for the submission, and a specific and detailed description of the circumstances caus-ing the late filing, accompanied by sup-porting documentation or other evi-dence. Any response to the motion may be included in the response to the peti-tion for review, the cross petition for review, or the response to the cross pe-tition for review. The response will not extend the time provided by paragraph (e) of this section to file a cross peti-tion for review or to respond to the pe-tition or cross petition. In the absence of a motion, the Board may, in its dis-cretion, determine on the basis of the existing record whether there was good cause for the untimely filing, or it may provide the party that submitted the document with an opportunity to show why it should not be dismissed or ex-cluded as untimely.

(h) Length limitations. A petition for review, a cross petition for review, or a response to a petition for review, whether computer generated, typed, or handwritten, is limited to 30 pages or 7500 words, whichever is less. A reply to a response to a petition for review is limited to 15 pages or 3750 words,

whichever is less. Computer generated and typed pleadings must use no less than 12 point typeface and 1-inch mar-gins and must be double spaced and only use one side of a page. The length limitation is exclusive of any table of contents, table of authorities, attach-ments, and certificate of service. A re-quest for leave to file a pleading that exceeds the limitations prescribed in this paragraph must be received by the Clerk of the Board at least 3 days be-fore the filing deadline. Such requests must give the reasons for a waiver as well as the desired length of the plead-ing and are granted only in exceptional circumstances. The page and word lim-its set forth above are maximum lim-its. Parties are not expected or re-quired to submit pleadings of the max-imum length. Typically, a well-written petition for review is between 5 and 10 pages long.

(i) Intervention. (1) By Director of OPM. The Director of OPM may inter-vene in a case before the Board under the standards stated in 5 U.S.C. 7701(d). The notice of intervention is timely if it is filed with the Clerk of the Board within 45 days of the date the petition for review was filed. If the Director re-quests additional time for filing a brief on intervention, the Board may, in its discretion, grant the request. A party may file a response to the Director’s brief within 15 days of the date of serv-ice of that brief. The Director must serve the notice of intervention and the brief on all parties.

(2) By Special Counsel. (i) Under 5 U.S.C. 1212(c), the Special Counsel may intervene as a matter of right, except as provided in paragraph (i)(2)(ii) of this section. The notice of intervention is timely filed if it is filed with the Clerk of the Board within 45 days of the date the petition for review was filed. If the Special Counsel requests additional time for filing a brief on intervention, the Board may, in its dis-cretion, grant the request. A party may file a response to the Special Counsel’s brief within 15 days of the date of serv-ice. The Special Counsel must serve the notice of intervention and the brief on all parties.

(ii) The Special Counsel may not in-tervene in an action brought by an in-dividual under 5 U.S.C. 1221, or in an


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appeal brought by an individual under 5 U.S.C. 7701, without the consent of that individual. The Special Counsel must present evidence that the indi-vidual has consented to the interven-tion at the time the motion to inter-vene is filed.

(3) Permissive intervenors. Any person, organization, or agency, by motion made in a petition for review, may ask for permission to intervene. The mo-tion must state in detail the reasons why the person, organization, or agen-cy should be permitted to intervene. A motion for permission to intervene will be granted if the requester shows that he or she will be affected directly by the outcome of the proceeding. Any person alleged to have committed a prohibited personnel practice under 5 U.S.C. 2302(b) may ask for permission to intervene.

(j) Service. A party submitting a pleading must serve a copy of it on each party and on each representative, as required by paragraph (b)(2) of § 1201.26.

(k) Closing the record. The record closes on expiration of the period for filing the reply to the response to the petition for review or on expiration of the period for filing a response to the cross petition for review, whichever is later, or to the brief on intervention, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argu-ment will be accepted unless it is new and material as defined in § 1201.115(d) and the party submitting it shows that the evidence or argument was not read-ily available before the record closed.

(l) Rejection for failure to comply. The Clerk of the Board may reject material submitted for filing that does not sub-stantially conform to the procedural requirements of this subpart by issuing a rejection letter advising the parties of the nature of the nonconformity and the requirements and deadline for re-submission. Any deadlines affected by the rejection will be addressed in the rejection letter.

[77 FR 62368, Oct. 12, 2012, as amended at 78 FR 23458, Apr. 19, 2013]

§ 1201.115 Criteria for granting peti-tion or cross petition for review.

The Board normally will consider only issues raised in a timely filed pe-tition or cross petition for review. Sit-uations in which the Board may grant a petition or cross petition for review include, but are not limited to, a show-ing that:

(a) The initial decision contains erro-neous findings of material fact.

(1) Any alleged factual error must be material, meaning of sufficient weight to warrant an outcome different from that of the initial decision.

(2) A petitioner who alleges that the judge made erroneous findings of mate-rial fact must explain why the chal-lenged factual determination is incor-rect and identify specific evidence in the record that demonstrates the error. In reviewing a claim of an erroneous finding of fact, the Board will give def-erence to an administrative judge’s credibility determinations when they are based, explicitly or implicitly, on the observation of the demeanor of wit-nesses testifying at a hearing.

(b) The initial decision is based on an erroneous interpretation of statute or regulation or the erroneous application of the law to the facts of the case. The petitioner must explain how the error affected the outcome of the case.

(c) The judge’s rulings during either the course of the appeal or the initial decision were not consistent with re-quired procedures or involved an abuse of discretion, and the resulting error affected the outcome of the case.

(d) New and material evidence or legal argument is available that, de-spite the petitioner’s due diligence, was not available when the record closed. To constitute new evidence, the infor-mation contained in the documents, not just the documents themselves, must have been unavailable despite due diligence when the record closed.

(e) Notwithstanding the above provi-sions in this section, the Board re-serves the authority to consider any issue in an appeal before it.

[77 FR 62369, Oct. 12, 2012]


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5 CFR Ch. II (1–1–16 Edition) § 1201.116

§ 1201.116 Compliance with orders for interim relief.

(a) Certification of compliance. If the appellant was the prevailing party in the initial decision and the decision granted the appellant interim relief, any petition or cross petition for re-view filed by the agency must be ac-companied by a certification that the agency has complied with the interim relief order either by providing the re-quired interim relief or by satisfying the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).

(b) Challenge to certification. If the ap-pellant challenges the agency’s certifi-cation of compliance with the interim relief order, the Board will issue an order affording the agency the oppor-tunity to submit evidence of its com-pliance. The appellant may respond to the agency’s submission of evidence within 10 days after the date of service of the submission.

(c) Allegation of noncompliance in peti-tion or cross petition for review. If an ap-pellant or an intervenor files a petition or cross petition for review of an initial decision ordering interim relief and such petition includes a challenge to the agency’s compliance with the in-terim relief order, upon order of the Board the agency must submit evi-dence that it has provided the interim relief required or that it has satisfied the requirements of 5 U.S.C. 7701(b)(2)(A)(ii) and (B).

(d) Request for dismissal for noncompli-ance with interim relief order. If the agency files a petition or cross petition for review and has not provided the re-quired interim relief, the appellant may request dismissal of the agency’s petition. Any such request must be filed with the Clerk of the Board with-in 25 days of the date of service of the agency’s petition. A copy of the re-sponse must be served on the agency at the same time it is filed with the Board. The agency may respond with evidence and argument to the appel-lant’s request to dismiss within 15 days of the date of service of the request. If the appellant files a motion to dismiss beyond the time limit, the Board will dismiss the motion as untimely unless the appellant shows that it is based on information not readily available be-fore the close of the time limit.

(e) Effect of failure to show compliance with interim relief order. Failure by an agency to provide the certification re-quired by paragraph (a) of this section with its petition or cross petition for review, or to provide evidence of com-pliance in response to a Board order in accordance with paragraphs (b), (c), or (d) of this section, may result in the dismissal of the agency’s petition or cross petition for review.

(f) Back pay and attorney fees. Noth-ing in this section shall be construed to require any payment of back pay for the period preceding the date of the judge’s initial decision or attorney fees before the decision of the Board be-comes final.

(g) Allegations of noncompliance after a final decision is issued. If the initial de-cision granted the appellant interim relief, but the appellant is not the pre-vailing party in the final Board order disposing of a petition for review, and the appellant believes that the agency has not provided full interim relief, the appellant may file an enforcement pe-tition with the regional office under 1201.182 of this part. The appellant must file this petition within 20 days of learning of the agency’s failure to pro-vide full interim relief. If the appellant prevails in the final Board order dis-posing of a petition for review, then any interim relief enforcement motion filed will be treated as a motion for en-forcement of the final decision. Peti-tions under this subsection will be processed under 1201.183 of this part.

[77 FR 62369, Oct. 12, 2012]

§ 1201.117 Board decisions; procedures for review or reopening.

(a) In any case that is reopened or re-viewed, the Board may:

(1) Issue a decision that decides the case;

(2) Hear oral arguments; (3) Require that briefs be filed; (4) Remand the appeal so that the

judge may take further testimony or evidence or make further findings or conclusions; or

(5) Take any other action necessary for final disposition of the case.

(b) The Board may affirm, reverse, modify, or vacate the initial decision of the judge, in whole or in part. The Board may issue a final decision and,


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when appropriate, order a date for com-pliance with that decision.

(c) The Board may issue a decision in the form of a precedential Opinion and Order or a nonprecedential Order.

(1) Opinion and Order. An Opinion and Order is a precedential decision of the Board and may be appropriately cited or referred to by any party.

(2) Nonprecedential Orders. A non-precedential Order is one that the Board has determined does not add sig-nificantly to the body of MSPB case law. The Board may, in its discretion, include in nonprecedential Orders a discussion of the issue(s) to assist the parties in understanding the reason(s) for the Board’s disposition in a par-ticular appeal. Nonprecedential Orders are not binding on the Board or its ad-ministrative judges in any future ap-peals except when it is determined they have a preclusive effect on parties under the doctrines of res judicata (claim preclusion), collateral estoppel (issue preclusion), judicial estoppel, or law of the case. Parties may cite non-precedential Orders, but such orders have no precedential value; the Board and its administrative judges are not required to follow or distinguish them in any future decisions. In contrast, a precedential decision issued as an Opinion and Order has been identified by the Board as significantly contrib-uting to the Board’s case law.

[76 FR 60707, Sept. 30, 2011, as amended at 77 FR 62370, Oct. 12, 2012]

§ 1201.118 Board reopening of final de-cisions.

Regardless of any other provision of this part, the Board may at any time reopen any appeal in which it has issued a final order or in which an ini-tial decision has become the Board’s final decision by operation of law. The Board will exercise its discretion to re-open an appeal only in unusual or ex-traordinary circumstances and gen-erally within a short period of time after the decision becomes final.

[77 FR 62370, Oct. 12, 2012]

§ 1201.119 OPM petition for reconsid-eration.

(a) Criteria. Under 5 U.S.C. 7703(d), the Director of the Office of Personnel

Management may file a petition for re-consideration of a Board final decision if he or she determines:

(1) That the Board erred in inter-preting a civil service law, rule, or reg-ulation affecting personnel manage-ment, and

(2) That the Board’s decision will have a substantial impact on a civil service law, rule, regulation, or policy directive.

(b) Time limit. The Director must file the petition for reconsideration within 35 days after the date of service of the Board’s final decision.

(c) Briefs. After the petition is filed, the Board will make the official record relating to the petition for reconsider-ation available to the Director for re-view. The Director’s brief in support of the petition for reconsideration must be filed within 20 days after the Board makes the record available for review. Any party’s opposition to the petition for reconsideration must be filed with-in 25 days from the date of service of the Director’s brief.

(d) Stays. If the Director of OPM files a petition for reconsideration, he or she also may ask the Board to stay its final decision. An application for a stay, with a supporting memorandum, must be filed at the same time as the petition for reconsideration.

[54 FR 53504, Dec. 29, 1989. Redesignated at 59 FR 30864, June 16, 1994, as amended at 77 FR 62370, Oct. 12, 2012]

§ 1201.120 Judicial review.

Any employee or applicant for em-ployment who is adversely affected by a final order or decision of the Board under the provisions of 5 U.S.C. 7703 may obtain judicial review as provided by 5 U.S.C. 7703. As § 1201.175 of this part provides, an appropriate United States district court has jurisdiction over a request for judicial review of cases involving the kinds of discrimi-nation issues described in 5 U.S.C. 7702.

[78 FR 39545, July 2, 2013]

Subpart D—Procedures for Original Jurisdiction Cases

SOURCE: 62 FR 48451, Sept. 16, 1997, unless otherwise noted.


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5 CFR Ch. II (1–1–16 Edition) § 1201.121

GENERAL

§ 1201.121 Scope of jurisdiction; appli-cation of subparts B, F, and H.

(a) Scope. The Board has original ju-risdiction over complaints filed by the Special Counsel seeking corrective or disciplinary action (including com-plaints alleging a violation of the Hatch Political Activities Act), re-quests by the Special Counsel for stays of certain personnel actions, proposed agency actions against administrative law judges, and removals of career ap-pointees from the Senior Executive Service for performance reasons.

(b) Application of subparts B, F, and H. (1) Except as otherwise expressly pro-vided by this subpart, the regulations in subpart B of this part applicable to appellate case processing also apply to original jurisdiction cases processed under this subpart.

(2) Subpart F of this part applies to enforcement proceedings in connection with Special Counsel complaints and stay requests, and agency actions against administrative law judges, de-cided under this subpart.

(3) Subpart H of this part applies to requests for attorney fees or compen-satory damages in connection with Special Counsel corrective and discipli-nary action complaints, and agency ac-tions against administrative law judges, decided under this subpart. Subpart H of this part also applies to requests for consequential damages in connection with Special Counsel cor-rective action complaints decided under this subpart.

(c) The provisions of this subpart do not apply to appeals alleging non-com-pliance with the provisions of chapter 43 of title 38 of the United States Code relating to the employment or reem-ployment rights or benefits to which a person is entitled after service in the uniformed services, in which the Spe-cial Counsel appears as the designated representative of the appellant. Such appeals are governed by part 1208 of this title.

[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997; 65 FR 5409, Feb. 4, 2000]

SPECIAL COUNSEL DISCIPLINARY ACTIONS

§ 1201.122 Filing complaint; serving documents on parties.

(a) Place of filing. A Special Counsel complaint seeking disciplinary action under 5 U.S.C. 1215(a)(1) (including a complaint alleging a violation of the Hatch Political Activities Act) must be filed with the Clerk of the Board.

(b) Initial filing and service. The Spe-cial Counsel must file a copy of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing each party or the party’s representa-tive. The certificate of service must show the last known address, telephone number, and facsimile number of each party or representative. The Special Counsel must serve a copy of the com-plaint on each party and the party’s representative, as shown on the certifi-cate of service.

(c) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service de-scribing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, ad-dress, telephone number, or facsimile number of the party or the party’s rep-resentative.

[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 77 FR 62370, Oct. 12, 2012]

§ 1201.123 Contents of complaint. (a) If the Special Counsel determines

that the Board should take any of the actions listed below, he or she must file a written complaint in accordance with § 1201.122 of this part, stating with par-ticularity any alleged violations of law or regulation, along with the sup-porting facts.

(1) Action to discipline an employee alleged to have committed a prohibited personnel practice, 5 U.S.C. 1215(a)(1)(A);

(2) Action to discipline an employee alleged to have violated any law, rule, or regulation, or to have engaged in prohibited conduct, within the jurisdic-tion of the Special Counsel under 5


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U.S.C. 1216 (including an alleged viola-tion by a Federal or District of Colum-bia government employee involving po-litical activity prohibited under 5 U.S.C. 7324), 5 U.S.C. 1215(a)(1)(B), 1216(a), and 1216(c);

(3) Action to discipline a State or local government employee for an al-leged violation involving prohibited po-litical activity, 5 U.S.C. 1505; or

(4) Action to discipline an employee for an alleged knowing and willful re-fusal or failure to comply with an order of the Board, 5 U.S.C. 1215(a)(1)(C).

(b) The administrative law judge to whom the complaint is assigned may order the Special Counsel and the re-sponding party to file briefs, memo-randa, or both in any disciplinary ac-tion complaint the Special Counsel brings before the Board.

§ 1201.124 Rights; answer to complaint. (a) Responsibilities of Clerk of the

Board. The Clerk of the Board shall fur-nish a copy of the applicable Board reg-ulations to each party that is not a Federal, State, or local government agency and shall inform such a party of the party’s rights under paragraph (b) of this section and the requirements re-garding the timeliness and content of an answer to the Special Counsel’s complaint under paragraphs (c) and (d), respectively, of this section.

(b) Rights. When the Special Counsel files a complaint proposing a discipli-nary action against an employee under 5 U.S.C. 1215(a)(1), the employee has the right:

(1) To file an answer, supported by af-fidavits and documentary evidence;

(2) To be represented; (3) To a hearing on the record before

an administrative law judge; (4) To a written decision, issued at

the earliest practicable date, in which the administrative law judge states the reasons for his or her decision; and

(5) To a copy of the administrative law judge’s decision and subsequent final decision by the Board, if any.

(c) Filing and default. A party named in a Special Counsel disciplinary ac-tion complaint may file an answer with the Clerk of the Board within 35 days of the date of service of the complaint. If a party fails to answer, the failure may constitute waiver of the right to

contest the allegations in the com-plaint. Unanswered allegations may be considered admitted and may form the basis of the administrative law judge’s decision.

(d) Content. An answer must contain a specific denial, admission, or expla-nation of each fact alleged in the com-plaint. If the respondent has no knowl-edge of a fact, he or she must say so. The respondent may include state-ments of fact and appropriate docu-mentation to support each denial or de-fense. Allegations that are unanswered or admitted in the answer may be con-sidered true.

§ 1201.125 Administrative law judge. (a) An administrative law judge will

hear a disciplinary action complaint brought by the Special Counsel.

(b) The administrative law judge will issue an initial decision on the com-plaint pursuant to 5 U.S.C. 557. The ap-plicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial decisions, the ju-risdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.

[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998; 70 FR 30609, May 27, 2005; 78 FR 39545, July 2, 2013]

§ 1201.126 Final decisions. (a) In any action to discipline an em-

ployee, except as provided in paragraph (b) of this section, the administrative law judge, or the Board on petition for review, may order a removal, a reduc-tion in grade, a debarment (not to ex-ceed five years), a suspension, a rep-rimand, or an assessment of a civil pen-alty not to exceed $1,000. 5 U.S.C. 1215(a)(3).

(b) In any action in which the admin-istrative law judge, or the Board on pe-tition for review, finds under 5 U.S.C. 1505 that a State or local government employee has violated the Hatch Polit-ical Activities Act and that the em-ployee’s removal is warranted, the ad-ministrative law judge, or the Board on petition for review, will issue a written decision notifying the employing agen-cy and the employee that the employee must be removed and not reappointed


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5 CFR Ch. II (1–1–16 Edition) § 1201.127

within 18 months of the date of the de-cision. If the agency fails to remove the employee, or if it reappoints the employee within 18 months, the admin-istrative law judge, or the Board on pe-tition for review, may order the Fed-eral entity administering loans or grants to the agency to withhold funds from the agency as provided under 5 U.S.C. 1506.

[62 FR 48451, Sept. 16, 1997, as amended at 70 FR 30609, May 27, 2005; 78 FR 39545, July 2, 2013]

§ 1201.127 Judicial review. (a) An employee subject to a final

Board decision imposing disciplinary action under 5 U.S.C. 1215 may obtain judicial review of the decision in the United States Court of Appeals for the Federal Circuit, except as provided under paragraph (b) of this section. 5 U.S.C. 1215(a)(4).

(b) A party aggrieved by a determina-tion or order of the Board under 5 U.S.C. 1505 (governing alleged viola-tions of the Hatch Political Activities Act by State or local government em-ployees) may obtain judicial review in an appropriate United States district court. 5 U.S.C. 1508.

SPECIAL COUNSEL CORRECTIVE ACTIONS

§ 1201.128 Filing complaint; serving documents on parties.

(a) Place of filing. A Special Counsel complaint seeking corrective action under 5 U.S.C. 1214 must be filed with the Clerk of the Board. After the com-plaint has been assigned to a judge, subsequent pleadings must be filed with the Board office where the judge is located.

(b) Initial filing and service. The Spe-cial Counsel must file a copy of the complaint, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the respondent agency or the agency’s representative, and each person on whose behalf the corrective action is brought.

(c) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service de-scribing how and when service was

made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, ad-dress, telephone number, or facsimile number of the party or the party’s rep-resentative.

[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 77 FR 62370, Oct. 12, 2012]

§ 1201.129 Contents of complaint.

(a) If the Special Counsel determines that the Board should take action to require an agency to correct a prohib-ited personnel practice (or a pattern of prohibited personnel practices) under 5 U.S.C. 1214(b)(4), he or she must file a written complaint in accordance with § 1201.128 of this part, stating with par-ticularity any alleged violations of law or regulation, along with the sup-porting facts.

(b) If the Special Counsel files a cor-rective action with the Board on behalf of an employee, former employee, or applicant for employment who has sought corrective action from the Board directly under 5 U.S.C. 1214(a)(3), the Special Counsel must provide evi-dence that the employee, former em-ployee, or applicant has consented to the Special Counsel’s seeking correc-tive action. 5 U.S.C. 1214(a)(4).

(c) The judge to whom the complaint is assigned may order the Special Counsel and the respondent agency to file briefs, memoranda, or both in any corrective action complaint the Spe-cial Counsel brings before the Board.

§ 1201.130 Rights; answer to complaint.

(a) Rights. (1) A person on whose be-half the Special Counsel brings a cor-rective action has a right to request intervention in the proceeding in ac-cordance with the regulations in § 1201.34 of this part. The Clerk of the Board shall notify each such person of this right.

(2) When the Special Counsel files a complaint seeking corrective action, the judge to whom the complaint is as-signed shall provide an opportunity for oral or written comments by the Spe-cial Counsel, the agency involved, and the Office of Personnel Management. 5 U.S.C. 1214(b)(3)(A).


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(3) The judge to whom the complaint is assigned shall provide a person al-leged to have been the subject of any prohibited personnel practice alleged in the complaint the opportunity to make written comments, regardless of whether that person has requested and been granted intervenor status. 5 U.S.C. 1214(b)(3)(B).

(b) Filing and default. An agency named as respondent in a Special Coun-sel corrective action complaint may file an answer with the judge to whom the complaint is assigned within 35 days of the date of service of the com-plaint. If the agency fails to answer, the failure may constitute waiver of the right to contest the allegations in the complaint. Unanswered allegations may be considered admitted and may form the basis of the judge’s decision.

(c) Content. An answer must contain a specific denial, admission, or expla-nation of each fact alleged in the com-plaint. If the respondent agency has no knowledge of a fact, it must say so. The respondent may include state-ments of fact and appropriate docu-mentation to support each denial or de-fense. Allegations that are unanswered or admitted in the answer may be con-sidered true.

§ 1201.131 Judge.

(a) The Board will assign a corrective action complaint brought by the Spe-cial Counsel under this subpart to a judge, as defined at § 1201.4(a) of this part, for hearing.

(b) The judge will issue an initial de-cision on the complaint pursuant to 5 U.S.C. 557. The applicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial deci-sions, the jurisdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.

[62 FR 48451, Sept. 16, 1997, as amended at 62 FR 66815, Dec. 22, 1997]

§ 1201.132 Final decisions.

(a) In any Special Counsel complaint seeking corrective action based on an allegation that a prohibited personnel practice has been committed, the judge, or the Board on petition for re-

view, may order appropriate corrective action. 5 U.S.C. 1214(b)(4)(A).

(b)(1) Subject to the provisions of paragraph (b)(2) of this section, in any case involving an alleged prohibited personnel practice described in 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D), the judge, or the Board on petition for review, will order appropriate cor-rective action if the Special Counsel demonstrates that a disclosure or pro-tected activity described under 5 U.S.C. 2302(b)(8) or 2302(b)(9)(A)(i), (B), (C), or (D) was a contributing factor in the personnel action that was taken or will be taken against the individual.

(2) Corrective action under paragraph (b)(1) of this section may not be or-dered if the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure or protected activity. 5 U.S.C. 1214(b)(4)(B).

[62 FR 48451, Sept. 16, 1997, as amended at 78 FR 39545, July 2, 2013]


An employee, former employee, or applicant for employment who is ad-versely affected by a final Board deci-sion on a corrective action complaint brought by the Special Counsel may obtain judicial review of the decision as provided by 5 U.S.C. 7703.

[78 FR 39545, July 2, 2013]

SPECIAL COUNSEL REQUESTS FOR STAYS

§ 1201.134 Deciding official; filing stay request; serving documents on par-ties.

(a) Request to stay personnel action. Under 5 U.S.C. 1214(b)(1), the Special Counsel may seek to stay a personnel action if the Special Counsel deter-mines that there are reasonable grounds to believe that the action was taken or will be taken as a result of a prohibited personnel practice.

(b) Deciding official. Any member of the Board may delegate to an adminis-trative law judge the authority to de-cide a Special Counsel request for an initial stay. The Board may delegate to a member of the Board the authority to rule on any matter related to a stay that has been granted to the Special


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5 CFR Ch. II (1–1–16 Edition) § 1201.135

Counsel, including a motion for exten-sion or termination of the stay.

(c) Place of filing. A Special Counsel stay request must be filed with the Clerk of the Board.

(d) Initial filing and service. The Spe-cial Counsel must file a copy of the re-quest, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the respondent agency or the agency’s rep-resentative. The certificate of service must show the last known address, telephone number, and facsimile num-ber of the agency or its representative. The Special Counsel must serve a copy of the request on the agency or its rep-resentative, as shown on the certificate of service.

(e) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service de-scribing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, ad-dress, telephone number, or facsimile number of the party or the party’s rep-resentative.

[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998; 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008; 77 FR 62370, Oct. 12, 2012]

§ 1201.135 Contents of stay request. The Special Counsel, or that offi-

cial’s representative, must sign each stay request, and must include the fol-lowing information in the request:

(a) The names of the parties; (b) The agency and officials involved; (c) The nature of the action to be

stayed; (d) A concise statement of facts justi-

fying the charge that the personnel ac-tion was or will be the result of a pro-hibited personnel practice; and

(e) The laws or regulations that were violated, or that will be violated if the stay is not issued.

§ 1201.136 Action on stay request. (a) Initial stay. A Special Counsel re-

quest for an initial stay of 45 days will be granted within three working days after the filing of the request, unless,

under the facts and circumstances, the requested stay would not be appro-priate. Unless the stay is denied within the 3-day period, it is considered grant-ed by operation of law.

(b) Extension of stay. Upon the Special Counsel’s request, a stay granted under 5 U.S.C. 1214(b)(1)(A) may be extended for an appropriate period of time, but only after providing the agency with an opportunity to comment on the re-quest. Any request for an extension of a stay under 5 U.S.C. 1214(b)(1)(B) must be received by the Board and the agen-cy no later than 15 days before the ex-piration date of the stay. A brief de-scribing the facts and any relevant legal authority that should be consid-ered must accompany the request for extension. Any response by the agency must be received by the Board no later than 8 days before the expiration date of the stay.

(c) Evidence of compliance with a stay. Within five working days from the date of a stay order or an order extending a stay, the agency ordered to stay a per-sonnel action must file evidence set-ting forth facts and circumstances demonstrating compliance with the order.

(d) Termination of stay. A stay may be terminated at any time, except that a stay may not be terminated:

(1) On the motion of an agency, or on the deciding official’s own motion, without first providing notice and op-portunity for oral or written comments to the Special Counsel and the indi-vidual on whose behalf the stay was or-dered; or

(2) On the motion of the Special Counsel without first providing notice and opportunity for oral or written comments to the individual on whose behalf the stay was ordered. 5 U.S.C. 1214(b)(1)(D).

(e) Additional information. At any time, where appropriate, the Special Counsel, the agency, or both may be re-quired to appear and present further information or explanation regarding a request for a stay, to file supplemental briefs or memoranda, or to supply fac-tual information needed to make a de-cision regarding a stay.

[62 FR 48451, Sept. 16, 1997, as amended at 63 FR 42686, Aug. 11, 1998]


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ACTIONS AGAINST ADMINISTRATIVE LAW JUDGES

§ 1201.137 Covered actions; filing com-plaint; serving documents on par-ties.

(a) Covered actions. The jurisdiction of the Board under 5 U.S.C. 7521 and this subpart with respect to actions against administrative law judges is limited to proposals by an agency to take any of the following actions against an administrative law judge:

(1) Removal; (2) Suspension; (3) Reduction in grade; (4) Reduction in pay; and (5) Furlough of 30 days or less. (b) Place of filing. To initiate an ac-

tion against an administrative law judge under this subpart, an agency must file a complaint with the Clerk of the Board.

(c) Initial filing and service. The agen-cy must file a copy of the complaint, together with numbered and tabbed ex-hibits or attachments, if any, and a certificate of service listing each party or the party’s representative. The cer-tificate of service must show the last known address, telephone number, and facsimile number of each party or rep-resentative. The agency must serve a copy of the complaint on each party and the party’s representative, as shown on the certificate of service.

(d) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service de-scribing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, ad-dress, telephone number, or facsimile number of the party or the party’s rep-resentative.

[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59863, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008; 77 FR 62370, Oct. 12, 2012]

§ 1201.138 Contents of complaint. A complaint filed under this section

must describe with particularity the facts that support the proposed agency action.

§ 1201.139 Rights; answer to complaint.

(a) Responsibilities of Clerk of the Board. The Clerk of the Board shall fur-nish a copy of the applicable Board reg-ulations to each administrative law judge named as a respondent in the complaint and shall inform each re-spondent of his or her rights under paragraph (b) of this section and the requirements regarding the timeliness and content of an answer to the agen-cy’s complaint under paragraphs (c) and (d), respectively, of this section.

(b) Rights. When an agency files a complaint proposing an action against an administrative law judge under 5 U.S.C. 7521 and this subpart, the admin-istrative law judge has the right:

(1) To file an answer, supported by af-fidavits and documentary evidence;

(2) To be represented; (3) To a hearing on the record before

an administrative law judge; (4) To a written decision, issued at

the earliest practicable date, in which the administrative law judge states the reasons for his or her decision; and

(5) To a copy of the administrative law judge’s decision and subsequent final decision by the Board, if any.

(c) Filing and default. A respondent named in an agency complaint may file an answer with the Clerk of the Board within 35 days of the date of service of the complaint. If a respondent fails to answer, the failure may constitute waiver of the right to contest the alle-gations in the complaint. Unanswered allegations may be considered admit-ted and may form the basis of the ad-ministrative law judge’s decision.

(d) Content. An answer must contain a specific denial, admission, or expla-nation of each fact alleged in the com-plaint. If the respondent has no knowl-edge of a fact, he or she must say so. The respondent may include state-ments of fact and appropriate docu-mentation to support each denial or de-fense. Allegations that are unanswered or admitted in the answer may be con-sidered true.

§ 1201.140 Judge; requirement for find-ing of good cause.

(a) Judge. (1) An administrative law judge will hear an action brought by an employing agency under this subpart


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5 CFR Ch. II (1–1–16 Edition) § 1201.141

against a respondent administrative law judge.

(2) The judge will issue an initial de-cision pursuant to 5 U.S.C. 557. The ap-plicable provisions of §§ 1201.111, 1201.112, and 1201.113 of this part govern the issuance of initial decisions, the ju-risdiction of the judge, and the finality of initial decisions. The initial decision will be subject to the procedures for a petition for review by the Board under subpart C of this part.

(b) Requirement for finding of good cause. A decision on a proposed agency action under this subpart against an administrative law judge will authorize the agency to take a disciplinary ac-tion, and will specify the penalty to be imposed, only after a finding of good cause as required by 5 U.S.C. 7521 has been made.

§ 1201.141 Judicial review. An administrative law judge subject

to a final Board decision authorizing a proposed agency action under 5 U.S.C. 7521 may obtain judicial review of the decision in the United States Court of Appeals for the Federal Circuit. 5 U.S.C. 7703.

§ 1201.142 Actions filed by administra-tive law judges.

An administrative law judge who al-leges a constructive removal or other action by an agency in violation of 5 U.S.C. 7521 may file a complaint with the Board under this subpart. The fil-ing and service requirements of § 1201.137 of this part apply. Such com-plaints shall be adjudicated in the same manner as agency complaints under this subpart.

[77 FR 62370, Oct. 12, 2012]

REMOVAL FROM THE SENIOR EXECUTIVE SERVICE

§ 1201.143 Right to hearing; filing com-plaint; serving documents on par-ties.

(a) Right to hearing. If an agency pro-poses to remove a career appointee from the Senior Executive Service under 5 U.S.C. 3592(a) (2) and 5 CFR 359.502, and to place that employee in another civil service position, the ap-pointee may request an informal hear-ing before an official designated by the

Board. Under 5 CFR 359.502, the agency proposing the removal must provide the appointee 30 days advance notice and must advise the appointee of the right to request a hearing. If the ap-pointee files the request at least 15 days before the effective date of the proposed removal, the request will be granted.

(b) Place of filing. A request for an in-formal hearing under paragraph (a) of this section must be filed with the Clerk of the Board. After the request has been assigned to a judge, subse-quent pleadings must be filed with the Board office where the judge is located.

(c) Initial filing and service. Except when filed electronically under 1201.14, the appointee must file two copies of the request, together with numbered and tabbed exhibits or attachments, if any, and a certificate of service listing the agency proposing the appointee’s removal or the agency’s representative. The certificate of service must show the last known address, telephone number, and facsimile number of the agency or its representative. The ap-pointee must serve a copy of the re-quest on the agency or its representa-tive, as shown on the certificate of service.

(d) Subsequent filings and service. Each party must serve on every other party or the party’s representative one copy of each of its pleadings, as defined by § 1201.4(b). A certificate of service de-scribing how and when service was made must accompany each pleading. Each party is responsible for notifying the Board and the other parties in writing of any change in name, ad-dress, telephone number, or facsimile number of the party or the party’s rep-resentative.

[62 FR 48451, Sept. 16, 1997, as amended at 68 FR 59864, Oct. 20, 2003; 69 FR 57630, Sept. 27, 2004; 73 FR 10130, Feb. 26, 2008; 77 FR 62371, Oct. 12, 2012]

§ 1201.144 Hearing procedures; refer-ring the record.

(a) The official designated to hold an informal hearing requested by a career appointee whose removal from the Sen-ior Executive Service has been pro-posed under 5 U.S.C. 3592(a)(2) and 5 CFR 359.502 will be a judge, as defined at § 1201.4(a) of this part.


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(b) The appointee, the appointee’s representative, or both may appear and present arguments in an informal hear-ing before the judge. A verbatim record of the proceeding will be made. The ap-pointee has no other procedural rights before the judge or the Board.

(c) The judge will refer a copy of the record to the Special Counsel, the Of-fice of Personnel Management, and the employing agency for whatever action may be appropriate.

§ 1201.145 No appeal. There is no right under 5 U.S.C. 7703

to appeal the agency’s action or any action by the judge or the Board in cases arising under § 1201.143(a) of this part. The removal action will not be delayed as a result of the hearing.

REQUESTS FOR PROTECTIVE ORDERS

§ 1201.146 Requests for protective or-ders by the Special Counsel.

(a) Under 5 U.S.C. 1204(e)(1)(B), the Board may issue any order that may be necessary to protect a witness or other individual from harassment during an investigation by the Special Counsel or during the pendency of any proceeding before the Board, except that an agen-cy, other than the Office of the Special Counsel, may not request a protective order with respect to an investigation by the Special Counsel during such in-vestigation.

(b) Any motion by the Special Coun-sel requesting a protective order must include a concise statement of reasons justifying the motion, together with any relevant documentary evidence. Where the request is made in connec-tion with a pending Special Counsel proceeding, the motion must be filed as early in the proceeding as practicable.

(c) Where there is a pending Special Counsel proceeding, a Special Counsel motion requesting a protective order must be filed with the judge con-ducting the proceeding, and the judge will rule on the motion. Where there is no pending Special Counsel proceeding, a Special Counsel motion requesting a protective order must be filed with the Clerk of the Board, and the Board will designate a judge, as defined at § 1201.4(a) of this part, to rule on the motion.

§ 1201.147 Requests for protective or-ders by persons other than the Spe-cial Counsel.

Requests for protective orders by per-sons other than the Special Counsel in connection with pending original juris-diction proceedings are governed by § 1201.55(d) of this part.

§ 1201.148 Enforcement of protective orders.

A protective order issued by a judge or the Board under this subpart may be enforced in the same manner as pro-vided under subpart F of this part for Board final decisions and orders.

Subpart E—Procedures for Cases Involving Allegations of Dis-crimination

§ 1201.151 Scope and policy. (a) Scope. (1) The rules in this subpart

implement 5 U.S.C. 7702. They apply to any case in which an employee or ap-plicant for employment alleges that a personnel action appealable to the Board was based, in whole or in part, on prohibited discrimination.

(2) ‘‘Prohibited discrimination,’’ as that term is used in this subpart, means discrimination prohibited by:

(i) Section 717 of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e– 16(a));

(ii) Section 6(d) of the Fair Labor Standards Act of 1938, as amended (29 U.S.C. 206(d));

(iii) Section 501 of the Rehabilitation Act of 1973, as amended (29 U.S.C. 791);

(iv) Sections 12 and 15 of the Age Dis-crimination in Employment Act of 1967, as amended (29 U.S.C. 631, 633a); or

(v) Any rule, regulation, or policy di-rective prescribed under any provision of law described in paragraphs (a)(2) (i) through (iv) of this section.

(b) Policy. The Board’s policy is to ad-judicate impartially, thoroughly, and fairly all issues raised under this sub-part.

§ 1201.152 Compliance with subpart B procedures.

Unless this subpart expressly pro-vides otherwise, all actions involving allegations of prohibited discrimina-tion must comply with the regulations


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5 CFR Ch. II (1–1–16 Edition) § 1201.153

that are included in subpart B of this part.

§ 1201.153 Contents of appeal. (a) Contents. An appeal raising issues

of prohibited discrimination must com-ply with § 1201.24 of this part, with the following exceptions:

(1) The appeal must state that there was discrimination in connection with the matter appealed, and it must state specifically how the agency discrimi-nated against the appellant; and

(2) The appeal must state whether the appellant has filed a grievance under a negotiated grievance procedure or a formal discrimination complaint with any agency regarding the matter being appealed to the Board. If he or she has done so, the appeal must state the date on which the appellant filed the complaint or grievance, and it must describe any action that the agency took in response to the com-plaint or grievance.

(b) Use of Board form or Internet filing option. An appellant may comply with paragraph (a) of this section by com-pleting MSPB Form 185, or by com-pleting all requests for information marked as required at the e-Appeal site (https://e-appeal.mspb.gov). MSPB Form 185 can be accessed at the Board’s Web site (http://www.mspb.gov).

[54 FR 53504, Dec. 29, 1989, as amended at 68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004; 77 FR 62371, Oct. 12, 2012]

§ 1201.154 Time for filing appeal. For purposes of this section, the date

an appellant receives the agency’s deci-sion is determined according to the standard set forth at 1201.22(b)(3) of this part. Appellants who file appeals raising issues of prohibited discrimina-tion in connection with a matter other-wise appealable to the Board must comply with the following time limits:

(a) Where the appellant has been sub-ject to an action appealable to the Board, he or she may either file a time-ly complaint of discrimination with the agency or file an appeal with the Board no later than 30 days after the effective date, if any, of the action being appealed, or 30 days after the date of the appellant’s receipt of the agency’s decision on the appealable ac-tion, whichever is later.

(b) If the appellant has filed a timely formal complaint of discrimination with the agency:

(1) An appeal must be filed within 30 days after the appellant receives the agency resolution or final decision on the discrimination issue; or

(2) If the agency has not resolved the matter or issued a final decision on the formal complaint within 120 days, the appellant may appeal the matter di-rectly to the Board at any time after the expiration of 120 calendar days. Once the agency resolves the matter or issues a final decision on the formal complaint, an appeal must be filed within 30 days after the appellant re-ceives the agency resolution or final decision on the discrimination issue.

(c) If the appellant files an appeal prematurely under this subpart, the judge will dismiss the appeal without prejudice to its later refiling under § 1201.22 of this part. If holding the ap-peal for a short time would allow it to become timely, the judge may hold the appeal rather than dismiss it.

[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 31109, June 17, 1994; 62 FR 59992, Nov. 6, 1997; 65 FR 25624, May 3, 2000; 73 FR 6834, Feb. 6, 2008; 77 FR 62371, Oct. 12, 2012]

§ 1201.155 Requests for review of arbi-trators’ decisions.

(a) Source and applicability. (1) Under paragraph (d) of 5 U.S.C. 7121, an em-ployee who believes he or she has been subjected to discrimination within the meaning of 5 U.S.C. 2302(b)(1), and who may raise the matter under either a statutory procedure such as 5 U.S.C. 7701 or under a negotiated grievance procedure, must make an election be-tween the two procedures. The election of the negotiated grievance procedure ‘‘in no manner prejudices’’ the employ-ee’s right to request Board review of the final decision pursuant to 5 U.S.C. 7702. Subsection (a)(1) of section 7702 provides that, ‘‘[n]otwithstanding any other provision of law,’’ when an em-ployee who has been subjected to an ac-tion that is appealable to the Board and who alleges that the action was the result of discrimination within the meaning of 5 U.S.C. 2302(b)(1), the Board will decide both the issue of dis-crimination and the appealable action


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in accordance with the Board’s appel-late procedures under section 7701.

(2) This section does not apply to em-ployees of the Postal Service or to other employees excluded from the coverage of the Federal labor manage-ment laws at chapter 71 of title 5, United States Code.

(b) When filed. The appellant’s re-quest for Board review must be filed within 35 days after the date of issuance of the decision or, if the appel-lant shows that he or she received the decision more than 5 days after the date of issuance, within 30 days after the date the appellant received the de-cision.

(c) Scope of Board review. If the nego-tiated grievance procedure permits al-legations of discrimination, the Board will review only those claims of dis-crimination that were raised in the ne-gotiated grievance procedure. If the ne-gotiated grievance procedure does not permit allegations of discrimination to be raised, the appellant may raise such claims before the Board.

(d) Contents. The appellant must file the request with the Clerk of the Board, Merit Systems Protection Board, 1615 M Street NW., Washington, DC 20419. The request for review must contain:

(1) A statement of the grounds on which review is requested;

(2) References to evidence of record or rulings related to the issues before the Board;

(3) Arguments in support of the stat-ed grounds that refer specifically to relevant documents and that include relevant citations of authority; and

(4) Legible copies of the final griev-ance or arbitration decision, the agen-cy decision to take the action, and other relevant documents. Those docu-ments may include a transcript or re-cording of the hearing.

(e) Development of the record. The Board, in its discretion, may develop the record as to a claim of prohibited discrimination by ordering the parties to submit additional evidence or for-warding the request for review to a judge to conduct a hearing.

(f) Closing of the record. The record will close upon expiration of the period for filing the response to the request

for review, or to the brief on interven-tion, if any, or on any other date the Board sets for this purpose. Once the record closes, no additional evidence or argument will be accepted unless the party submitting it shows that the evi-dence was not readily available before the record closed.

[77 FR 62371, Oct. 12, 2012]

§ 1201.156 Time for processing appeals involving allegations of discrimina-tion.

(a) Issue raised in appeal. When an ap-pellant alleges prohibited discrimina-tion in the appeal, the judge will decide both the issue of discrimination and the appealable action within 120 days after the appeal is filed.

(b) Issue not raised in appeal. When an appellant has not alleged prohibited discrimination in the appeal, but has raised the issue later in the proceeding, the judge will decide both the issue of discrimination and the appealable ac-tion within 120 days after the issue is raised.

(c) Discrimination issue remanded to agency. When the judge remands an issue of discrimination to the agency, adjudication will be completed within 120 days after the agency completes its action and returns the case to the Board.

§ 1201.157 Notice of right to judicial review.

Any final decision of the Board under 5 U.S.C. 7702 will notify the appellant of his or her right, within 30 days after receiving the Board’s final decision, to petition the Equal Employment Oppor-tunity Commission to consider the Board’s decision, or to file a civil ac-tion in an appropriate United States district court. If an appellant elects to waive the discrimination issue, an ap-peal may be filed with the United States Court of Appeals for the Federal Circuit as stated in § 1201.120 of this part.

[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998]


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5 CFR Ch. II (1–1–16 Edition) § 1201.161

REVIEW OF BOARD DECISION

§ 1201.161 Action by the Equal Employ-ment Opportunity Commission; ju-dicial review.

(a) Time limit for determination. In cases in which an appellant petitions the Equal Employment Opportunity Commission (Commission) for consider-ation of the Board’s decision under 5 U.S.C. 7702(b)(2), the Commission will determine, within 30 days after the date of the petition, whether it will consider the decision.

(b) Judicial review. The Board’s deci-sion will become judicially reviewable on:

(1) The date on which the decision is issued, if the appellant does not file a petition with the Commission under 5 U.S.C. 7702(b)(1); or

(2) The date of the Commission’s de-cision that it will not consider the pe-tition filed under 5 U.S.C. 7702(b)(2).

(c) Commission processing and time lim-its. If the Commission decides to con-sider the decision of the Board, within 60 days after making its decision it will complete its consideration and either:

(1) Concur in the decision of the Board; or

(2) Issue in writing and forward to the Board for its action under § 1201.162 of this subpart another decision, which differs from the decision of the Board to the extent that the Commission finds that, as a matter of law:

(i) The decision of the Board con-stitutes an incorrect interpretation of any provision of any law, rule, regula-tion, or policy directive related to pro-hibited discrimination; or

(ii) The evidence in the record as a whole does not support the decision in-volving that provision.

(d) Transmittal of record. The Board will transmit a copy of its record to the Commission upon request.

(e) Development of additional evidence. When asked by the Commission to do so, the Board or a judge will develop additional evidence necessary to sup-plement the record. This action will be completed within a period that will permit the Commission to make its de-cision within the statutory 60-day time limit referred to in paragraph (c) of this section. The Board or the judge may schedule additional proceedings if

necessary in order to comply with the Commission’s request.

(f) Commission concurrence in Board decision. If the Commission concurs in the decision of the Board under 5 U.S.C. 7702(b)(3)(A), the appellant may file suit in an appropriate United States district court.

§ 1201.162 Board action on the Com-mission decision; judicial review.

(a) Board decision. Within 30 days after receipt of a decision of the Com-mission issued under 1201.161(c)(2), the Board shall consider the decision and:

(1) Concur and adopt in whole the de-cision of the Commission; or

(2) To the extent that the Board finds that, as a matter of law:

(i) The Commission decision is based on an incorrect interpretation of any provision of any civil service law, rule, regulation, or policy directive, or

(ii) The evidence in the record as a whole does not support the Commission decision involving that provision, it may reaffirm the decision of the Board. In doing so, it may make revisions in the decision that it determines are ap-propriate.

(b) Judicial review. If the Board con-curs in or adopts the decision of the Commission under paragraph (a)(1) of this section, the decision of the Board is a judicially reviewable action.

SPECIAL PANEL

§ 1201.171 Referral of case to Special Panel.

If the Board reaffirms its decision under § 1201.162(a)(2) of this part with or without modification, it will certify the matter immediately to a Special Panel established under 5 U.S.C. 7702(d). Upon certification, the Board, within 5 days (excluding Saturdays, Sundays, and Federal holidays), will transmit the administrative record in the proceeding to the Chairman of the Special Panel and to the Commission. That record will include the following:

(a) The factual record compiled under this section, which will include a tran-script of any hearing;

(b) The decisions issued by the Board and the Commission under 5 U.S.C. 7702; and


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(c) A transcript of oral arguments made, or legal briefs filed, before the Board or the Commission.

§ 1201.172 Organization of Special Panel; designation of members.

(a) A Special Panel is composed of: (1) A Chairman, appointed by the

President with the advice and consent of the Senate, whose term is six (6) years;

(2) One member of the Board, des-ignated by the Chairman of the Board each time a Panel is convened;

(3) One member of the Commission, designated by the Chairman of the Commission each time a Panel is con-vened.

(b) Designation of Special Panel mem-bers—(1) Time of designation. Within 5 days of certification of a case to a Spe-cial Panel, the Chairman of Board and the Chairman of the Commission each will designate one member from his or her agency to serve on the Special Panel.

(2) Manner of designation. Letters des-ignating the Panel members will be served on the Chairman of the Panel and on the parties to the appeal.

§ 1201.173 Practices and procedures of Special Panel.

(a) Scope. The rules in this subpart apply to proceedings before a Special Panel.

(b) Suspension of rules. Unless a rule is required by statute, the Chairman of a Special Panel may suspend the rule, in the interest of expediting a decision or for other good cause shown, and may conduct the proceedings in a manner he or she directs. The Chairman may take this action at the request of a party, or on his or her own motion.

(c) Time limit for proceedings. In ac-cordance with 5 U.S.C. 7702(d)(2)(A), the Special Panel will issue a decision within 45 days after a matter has been certified to it.

(d) Administrative assistance to the Spe-cial Panel. (1) The Board and the Com-mission will provide the Panel with the administrative resources that the Chairman of the Special Panel deter-mines are reasonable and necessary.

(2) Assistance will include, but is not limited to, processing vouchers for pay and travel expenses.

(3) The Board and the Commission are responsible for all administrative costs the Special Panel incurs, and, to the extent practicable, they will divide equally the costs of providing adminis-trative assistance. If the Board and the Commission disagree on the manner in which costs are to be divided, the Chairman of the Special Panel will re-solve the disagreement.

(e) Maintaining the official record. The Board will maintain the official record of the appeal. It will transmit two cop-ies of each submission that is filed to each member of the Special Panel in an expeditious manner.

(f) Filing and service of pleadings. (1) The parties must file the original and six copies of each submission with the Clerk, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. The Office of the Clerk will serve one copy of each submission on the other parties.

(2) A certificate of service specifying how and when service was made must accompany all submissions of the par-ties.

(3) Service may be made by mail or by personal delivery during the Board’s normal business hours (8:30 a.m. to 5:00 p.m.). Because of the short statutory time limit for processing these cases, parties must file their submissions by overnight Express Mail, provided by the U.S. Postal Service, if they file their submissions by mail.

(4) A submission filed by Express Mail is considered to have been filed on the date of the Express Mail Order. A submission that is delivered personally is considered to have been filed on the date the Office of the Clerk of the Board receives it.

(g) Briefs and responsive pleadings. If the parties wish to submit written ar-gument, they may file briefs with the Special Panel within 15 days after the date of the Board’s certification order. Because of the short statutory time limit for processing these cases, the Special Panel ordinarily will not per-mit responsive pleadings.

(h) Oral argument. The parties have the right to present oral argument. Parties wishing to exercise this right must indicate this desire when they file their briefs or, if no briefs are filed, within 15 days after the date of the


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5 CFR Ch. II (1–1–16 Edition) § 1201.174

Board’s certification order. Upon re-ceiving a request for argument, the Chairman of the Special Panel will de-termine the time and place for argu-ment and the amount of time to be al-lowed each side, and he or she will pro-vide this information to the parties.

(i) Postargument submission. Because of the short statutory time limit for processing these cases, the parties may not file postargument submissions un-less the Chairman of the Special Panel permits those submissions.

(j) Procedural matters. Any procedural matters not addressed in these regula-tions will be resolved by written order of the Chairman of the Special Panel.

(k) Electronic filing. Pleadings in mat-ters before the Special Panel may not be filed or served in electronic form.

[54 FR 53504, Dec. 29, 1989, as amended at 65 FR 48885, Aug. 10, 2000; 68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]

§ 1201.174 Enforcing the Special Panel decision.

The Board, upon receipt of the deci-sion of the Special Panel, will order the agency concerned to take any action appropriate to carry out the decision of the Panel. The Board’s regulations re-garding enforcement of a final order of the Board apply to this matter. These regulations are set out in subpart F of this part.

§ 1201.175 Judicial review of cases de-cided under 5 U.S.C. 7702.

(a) Place and type of review. The ap-propriate United States district court is authorized to conduct all judicial re-view of cases decided under 5 U.S.C. 7702. Those cases include appeals from actions taken under the following pro-visions: Section 717(c) of the Civil Rights Act of 1964, as amended (42 U.S.C. 2000e–16(c)); section 15(c) of the Age Discrimination in Employment Act of 1967, as amended (29 U.S.C. 633a(c)); and section 15(b) of the Fair Labor Standards Act of 1938, as amend-ed (29 U.S.C. 216(b)).

(b) Time for filing request. Regardless of any other provision of law, requests for judicial review of all cases decided under 5 U.S.C. 7702 must be filed within 30 days after the appellant received no-tice of the judicially reviewable action.

Subpart F—Enforcement of Final Decisions and Orders

§ 1201.181 Authority and explanation.

(a) Authority. Under 5 U.S.C. 1204(a)(2), the Board has the authority to order any Federal agency or em-ployee to comply with decisions and or-ders issued under its jurisdiction and the authority to enforce compliance with its orders and decisions. The Board’s decisions and orders, when ap-propriate, will contain a notice of the Board’s enforcement authority.

(b) Requirements for parties. The par-ties are expected to cooperate fully with each other so that compliance with the Board’s orders and decisions can be accomplished promptly and in accordance with the laws, rules, and regulations that apply to individual cases. Agencies must promptly inform an appellant of actions taken to com-ply and must inform the appellant when it believes compliance is com-plete. Appellants must provide agen-cies with all information necessary for compliance and should monitor the agency’s progress towards compliance.

[77 FR 62371, Oct. 12, 2012]

§ 1201.182 Petition for enforcement.

(a) Appellate jurisdiction. Any party may petition the Board for enforce-ment of a final decision or order issued under the Board’s appellate jurisdic-tion, or for enforcement of the terms of a settlement agreement that has been entered into the record for the purpose of enforcement in an order or decision under the Board’s appellate jurisdic-tion. The petition must be filed promptly with the regional or field of-fice that issued the initial decision; a copy of it must be served on the other party or that party’s representative; and it must describe specifically the reasons the petitioning party believes there is noncompliance. The petition also must include the date and results of any communications regarding com-pliance. Any petition for enforcement that is filed more than 30 days after the date of service of the agency’s no-tice that it has complied must contain a statement and evidence showing good cause for the delay and a request for an


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extension of time for filing the peti-tion.

(b) Original jurisdiction. Any party seeking enforcement of a final Board decision or order issued under its origi-nal jurisdiction or enforcement of the terms of settlement agreement entered into the record for the purpose of en-forcement in an order or decision issued under its original jurisdiction must file a petition for enforcement with the Clerk of the Board and must serve a copy of that petition on the other party or that party’s representa-tive. The petition must describe spe-cifically the reasons why the peti-tioning party believes there is non-compliance.

(c) Petition by an employee other than a party. (1) Under 5 U.S.C. 1204(e)(2)(B), any employee who is aggrieved by the failure of any other employee to com-ply with an order of the Board may pe-tition the Board for enforcement. Ex-cept for a petition filed under para-graph (c)(2) or (c)(3) of this section, the Board will entertain a petition for en-forcement from an aggrieved employee who is not a party only if the employee seeks and is granted party status as a permissive intervenor under § 1201.34(c) of this part. The employee must file a motion to intervene at the time of fil-ing the petition for enforcement. The petition for enforcement must describe specifically why the petitioner believes there is noncompliance and in what way the petitioner is aggrieved by the noncompliance. The motion to inter-vene will be considered in accordance with § 1201.34(c) of this part.

(2) Under § 1201.33(c) of this part, a nonparty witness who has obtained an order from a judge that his or her em-ploying agency provide the witness with official time may petition the Board for enforcement of the order.

(3) Under § 1201.37(e) of this part, a nonparty witness who has obtained an order requiring the payment of witness fees and travel costs may petition the Board for enforcement of the order.

(4) Under § 1201.55(d) of this part, a nonparty witness or other individual who has obtained a protective order from a judge during the course of a Board proceeding for protection from harassment may petition the Board for enforcement of the order.

(5) A petition for enforcement under paragraph (c)(1), (c)(2), (c)(3) or (c)(4) of this section must be filed promptly with the regional or field office that issued the order or, if the order was issued by the Board, with the Clerk of the Board. The petitioner must serve a copy of the petition on each party or the party’s representative. If the peti-tion is filed under paragraph (c)(1) of this section, the motion to intervene must be filed and served with the peti-tion.

[54 FR 53504, Dec. 29, 1989, as amended at 59 FR 65235, Dec. 19, 1994; 62 FR 48935, Sept. 18, 1997; 73 FR 6834, Feb. 6, 2008; 77 FR 62371, Oct. 12, 2012]

§ 1201.183 Procedures for processing petitions for enforcement.

(a) Initial Processing. (1) When a party has filed a petition for enforcement of a final decision, the alleged noncom-plying party must file one of the fol-lowing within 15 days of the date of service of the petition:

(i) Evidence of compliance, including a narrative explanation of the calcula-tion of back pay and other benefits, and supporting documents;

(ii) Evidence as described in para-graph (a)(1)(i) of this section of the compliance actions that the party has completed, and a statement of the ac-tions that are in process and the ac-tions that remain to be taken, along with a reasonable schedule for full compliance; or

(iii) A statement showing good cause for the failure to comply completely with the decision of the Board. The party that filed the petition may respond to that submission within 10 days after the date of service of the submission. The parties must serve copies of their pleadings on each other as required under § 1201.26(b)(2) of this part.

(2) If the agency is the alleged non-complying party, it shall submit the name, title, grade, and address of the agency official charged with complying with the Board’s order, and inform such official in writing of the potential sanction for noncompliance as set forth in 5 U.S.C. 1204(a)(2) and (e)(2)(A), even if the agency asserts it has fully com-plied. The agency must advise the Board of any change to the identity or


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5 CFR Ch. II (1–1–16 Edition) § 1201.183

location of this official during the pendency of any compliance pro-ceeding. In the absence of this informa-tion, the Board will presume that the highest ranking appropriate agency of-ficial who is not appointed by the President by and with the consent of the Senate is charged with compliance.

(3) The judge may convene a hearing if one is necessary to resolve matters at issue.

(4) If the judge finds that there has been compliance or a good faith effort to take all actions required to be in compliance with the final decision, he or she will state those findings in a de-cision. That decision will be subject to the procedures for petitions for review by the Board under subpart C of this part, and subject to judicial review under § 1201.120 of this part.

(5) If the judge finds that the alleged noncomplying party has not taken all actions required to be in full compli-ance with the final decision, the judge will issue an initial decision resolving all issues raised in the petition for en-forcement and identifying the specific actions the noncomplying party must take to be in compliance with the Board’s final decision. A copy of the initial decision will be served on the responsible agency official.

(6) If an initial decision described under paragraph (a)(5) of this section is issued, the party found to be in non-compliance must do the following:

(i) To the extent that the party de-cides to take the actions required by the initial decision, the party must submit to the Clerk of the Board, with-in the time limit for filing a petition for review under § 1201.114(e) of this part, a statement that the party has taken the actions identified in the ini-tial decision, along with evidence es-tablishing that the party has taken those actions. The narrative statement must explain in detail why the evi-dence of compliance satisfies the re-quirements set forth in the initial deci-sion.

(ii) To the extent that the party de-cides not to take all of the actions re-quired by the initial decision, the party must file a petition for review under the provisions of §§ 1201.114 and 1201.115 of this part.

(iii) The responses required by the preceding two paragraphs may be filed separately or as a single pleading.

(7) If the agency is the party found to be in noncompliance, it must advise the Board, as part of any submission under this paragraph, of any change in the identity or location of the official responsible for compliance previously provided pursuant to paragraph (a)(2) of this section.

(8) The complying party may file evi-dence and argument in response to any submission described in paragraph (a)(6) of this section by filing opposing evidence and argument with the Clerk of the Board within 20 days of the date such submission is filed.

(9) Discovery may be undertaken in accordance with the Board’s regular discovery procedures (§§ 1201.71 through 1201.75 of this part), except that unless otherwise directed by the judge, initial discovery requests must be served no later than 15 days after the alleged noncomplying party files a response to the petition for enforcement as re-quired under paragraph (a)(1) of this section.

(b) Final Decision of noncompliance. If a party found to be in noncompliance under paragraph (a)(5) of this section does not file a timely pleading with the Clerk of the Board as required by para-graph (a)(6) of this section, the findings of noncompliance become final and the case will be processed under the en-forcement provisions of paragraph (c)(1) of this section.

(c) Consideration by the Board. (1) Fol-lowing review of the initial decision and the written submissions of the par-ties, the Board will render a final deci-sion on the issues of compliance. Upon finding that the agency is in non-compliance, the Board may, when ap-propriate, require the agency and the responsible agency official to appear before the Board to show why sanc-tions should not be imposed under 5 U.S.C. 1204(a)(2) and 1204(e)(2)(A). The Board also may require the agency and the responsible agency official to make this showing in writing, or to make it both personally and in writing. The re-sponsible agency official has the right to respond in writing or to appear at any argument concerning the with-holding of that official’s pay.


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(2) The Board’s final decision on the issues of compliance is subject to judi-cial review under 1201.120 of this part.

(d) Burdens of proof. If an appellant files a petition for enforcement seeking compliance with a Board order, the agency generally has the burden to prove its compliance with the Board order by a preponderance of the evi-dence. However, if any party files a pe-tition for enforcement seeking compli-ance with the terms of a settlement agreement, that party has the burden of proving the other party’s breach of the settlement agreement by a prepon-derance of the evidence.

(e) Certification to the Comptroller Gen-eral. When appropriate, the Board may certify to the Comptroller General of the United States, under 5 U.S.C. 1204(e)(2)(A), that no payment is to be made to a certain Federal employee. This order may apply to any Federal employee, other than a Presidential ap-pointee subject to confirmation by the Senate, who is found to be in non-compliance with the Board’s order.

(f) Effect of Special Counsel’s action or failure to act. Failure by the Special Counsel to file a complaint under 5 U.S.C. 1215(a)(1)(C) and subpart D of this part will not preclude the Board from taking action under this subpart.

[54 FR 53504, Dec. 29, 1989, as amended at 63 FR 41179, Aug. 3, 1998; 77 FR 62372, Oct. 12, 2012; 80 FR 21153, Apr. 17, 2015; 80 FR 66788, Oct. 30, 2015]

Subpart G—Savings Provisions § 1201.191 Savings provisions.

(a) Civil Service Reform Act of 1978 (Pub.L. 95–454)—(1) Scope. All executive orders, rules and regulations relating to the Federal service that were in ef-fect prior to the effective date of the Civil Service Reform Act shall con-tinue in effect and be applied by the Board in its adjudications until modi-fied, terminated, superseded, or re-pealed by the President, Office of Per-sonnel Management, the Merit Sys-tems Protection Board, the Equal Em-ployment Opportunity Commission, or the Federal Labor Relations Authority, as appropriate.

(2) Administrative proceedings and ap-peals therefrom. No provision of the Civil Service Reform Act shall be ap-

plied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. ‘‘Pending’’ is considered to encompass existing agency pro-ceedings, and appeals before the Board or its predecessor agencies, that were subject to judicial review or under ju-dicial review on January 11, 1979, the date on which the Act became effec-tive. An agency proceeding is consid-ered to exist once the employee has re-ceived notice of the proposed action.

(3) Explanation. Mr. X was advised of agency’s intention to remove him for abandonment of position, effective De-cember 29, 1978. Twenty days later Mr. X appealed the agency action to the Merit Systems Protection Board. The Merit Systems Protection Board dock-eted Mr. X’s appeal as an ‘‘old system case,’’ i.e., one to which the savings clause applied. The appropriate re-gional office processed the case, apply-ing the substantive laws, rules and reg-ulations in existence prior to the en-actment of the Act. The decision, dated February 28, 1979, informed Mr. X that he is entitled to judicial review if he files a timely notice of appeal in the appropriate United States district court or the United States Court of Claims under the statute of limitations applicable when the adverse action was taken.

(b) Whistleblower Protection Act of 1989 (Pub. L. 101–12)—(1) Scope. All orders, rules, and regulations issued by the Board and the Special Counsel before the effective date of the Whistleblower Protection Act of 1989 shall continue in effect, according to their terms, until modified, terminated, superseded, or repealed by the Board or the Special Counsel, as appropriate.

(2) Administrative proceedings and ap-peals therefrom. No provision of the Whistleblower Protection Act of 1989 shall be applied by the Board in such a way as to affect any administrative proceeding pending at the effective date of such provision. ‘‘Pending’’ is considered to encompass existing agen-cy proceedings, including personnel ac-tions that were proposed, threatened, or taken before July 9, 1989, the effec-tive date of the Whistleblower Protec-tion Act of 1989, and appeals before the Board or its predecessor agencies that


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5 CFR Ch. II (1–1–16 Edition) § 1201.201

were subject to judicial review on that date. An agency proceeding is consid-ered to exist once the employee has re-ceived notice of the proposed action.

Subpart H—Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable) and Dam-ages (Consequential, Liq-uidated, and Compensatory)


§ 1201.201 Statement of purpose. (a) This subpart governs Board pro-

ceedings for awards of attorney fees (plus costs, expert witness fees, and litigation expenses, where applicable), consequential damages, compensatory damages, and liquidated damages.

(b) There are seven statutory provi-sions covering attorney fee awards. Be-cause most MSPB cases are appeals under 5 U.S.C. 7701, most requests for attorney fees will be governed by § 1201.202(a)(1). There are, however, other attorney fee provisions that apply only to specific kinds of cases. For example, § 1201.202(a)(4) applies only to certain whistleblower appeals. Sections 1201.202(a)(5) and (a)(6) apply only to corrective and disciplinary ac-tion cases brought by the Special Counsel. Section 1201.202(a)(7) applies only to appeals brought under the Uni-formed Services Employment and Re-employment Rights Act.

(c) An award of consequential dam-ages is authorized in only two situa-tions: Where the Board orders correc-tive action in a whistleblower appeal under 5 U.S.C. 1221, and where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214. Consequential damages in-clude such items as medical costs and travel expenses, and other costs as de-termined by the Board through case law.

(d) The Civil Rights Act of 1991 (42 U.S.C. 1981a) authorizes an award of compensatory damages to a prevailing party who is found to have been inten-tionally discriminated against based on race, color, religion, sex, national ori-gin, or disability. The Whistleblower

Protection Enhancement Act of 2012 (5 U.S.C. 1221(g)) also authorizes an award of compensatory damages in cases where the Board orders corrective ac-tion. Compensatory damages include pecuniary losses, future pecuniary losses, and nonpecuniary losses, such as emotional pain, suffering, inconven-ience, mental anguish, and loss of en-joyment of life.

(e) An award equal to back pay shall be awarded as liquidated damages under 5 U.S.C. 3330c when the Board or a court determines an agency willfully violated an appellant’s veterans’ pref-erence rights.

[63 FR 41179, Aug. 3, 1998, as amended at 77 FR 62372, Oct. 12, 2012; 78 FR 39545, July 2, 2013]

§ 1201.202 Authority for awards.

(a) Awards of attorney fees (plus costs, expert witness fees, and litigation ex-penses, where applicable). The Board is authorized by various statutes to order payment of attorney fees and, where applicable, costs, expert witness fees, and litigation expenses. These statu-tory authorities include, but are not limited to, the following authorities to order payment of:

(1) Attorney fees, as authorized by 5 U.S.C. 7701(g)(1), where the appellant or respondent is the prevailing party in an appeal under 5 U.S.C. 7701 or an agency action against an administra-tive law judge under 5 U.S.C. 7521, and an award is warranted in the interest of justice;

(2) Attorney fees, as authorized by 5 U.S.C. 7701(g)(2), where the appellant or respondent is the prevailing party in an appeal under 5 U.S.C. 7701, a request to review an arbitration decision under 5 U.S.C. 7121(d), or an agency action against an administrative law judge under 5 U.S.C. 7521, and the decision is based on a finding of discrimination prohibited under 5 U.S.C. 2302(b)(1);

(3) Attorney fees and costs, as au-thorized by 5 U.S.C. 1221(g)(2), where the appellant is the prevailing party in an appeal under 5 U.S.C. 7701 and the Board’s decision is based on a finding of a prohibited personnel practice;

(4) Attorney fees and costs, as au-thorized by 5 U.S.C. 1221(g)(1)(B), where the Board orders corrective action in a


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whistleblower appeal to which 5 U.S.C. 1221 applies;

(5) Attorney fees, as authorized by 5 U.S.C. 1214(g)(2) or 5 U.S.C. 7701(g)(1), where the Board orders corrective ac-tion in a Special Counsel complaint under 5 U.S.C. 1214;

(6) Attorney fees, costs and damages as authorized by 5 U.S.C. 1214(h) where the Board orders corrective action in a Special Counsel complaint under 5 U.S.C. 1214 and determines that the employee has been subjected to an agency investigation that was com-menced, expanded or extended in retal-iation for the disclosure or protected activity that formed the basis of the corrective action.

(7) Attorney fees, as authorized by 5 U.S.C. 1204(m), where the respondent is the prevailing party in a Special Coun-sel complaint for disciplinary action under 5 U.S.C. 1215;

(8) Attorney fees, expert witness fees, and litigation expenses, as authorized by the Uniformed Services Employ-ment and Reemployment Rights Act, 38 U.S.C. 4324(c)(4); and

(9) Attorney fees, expert witness fees, and other litigation expenses, as au-thorized by the Veterans Employment Opportunities Act; 5 U.S.C. 3330c(b).

(b) Awards of consequential damages. The Board may order payment of con-sequential damages, including medical costs incurred, travel expenses, and any other reasonable and foreseeable consequential damages:

(1) As authorized by 5 U.S.C. 1221(g)(1)(A)(ii), where the Board orders corrective action in a whistleblower appeal to which 5 U.S.C. 1221 applies; and

(2) As authorized by 5 U.S.C. 1221(g)(4) where the Board orders cor-rective action to correct a prohibited personnel practice and determines that the employee has been subjected to an agency investigation that was com-menced, expanded, or extended in re-taliation for the disclosure or pro-tected activity that formed the basis of the corrective action.

(3) As authorized by 5 U.S.C. 1214(g)(2), where the Board orders cor-rective action in a Special Counsel complaint under 5 U.S.C. 1214.

(4) As authorized by 5 U.S.C. 1214(h) where the Board orders corrective ac-

tion to correct a prohibited personnel practice and determines that the em-ployee has been subjected to an agency investigation that was commenced, ex-panded, or extended in retaliation for the disclosure or protected activity that formed the basis of the corrective action.

(c) Awards of compensatory damages. The Board may order payment of com-pensatory damages, as authorized by section 102 of the Civil Rights Act of 1991 (42 U.S.C. 1981a), based on a finding of unlawful intentional discrimination but not on an employment practice that is unlawful because of its dis-parate impact under the Civil Rights Act of 1964, the Rehabilitation Act of 1973, or the Americans with Disabilities Act of 1990. The Whistleblower Protec-tion Enhancement Act of 2012 (5 U.S.C. 1221(g)) also authorizes an award of compensatory damages in cases where the Board orders corrective action. Compensatory damages include pecu-niary losses, future pecuniary losses, and nonpecuniary losses such as emo-tional pain, suffering, inconvenience, mental anguish, and loss of enjoyment of life.

(d) Awards of liquidated damages. The Board may award an amount equal to back pay as liquidated damages under 5 U.S.C. 3330c when it determines that an agency willfully violated an appellant’s veterans’ preference rights.

(e) Definitions. For purposes of this subpart:

(1) A proceeding on the merits is a pro-ceeding to decide an appeal of an agen-cy action under 5 U.S.C. 1221 or 7701, an appeal under 38 U.S.C. 4324, an appeal under 5 U.S.C. 3330a, a request to re-view an arbitration decision under 5 U.S.C. 7121(d), a Special Counsel com-plaint under 5 U.S.C. 1214 or 1215, or an agency action against an administra-tive law judge under 5 U.S.C. 7521.

(2) An addendum proceeding is a pro-ceeding conducted after issuance of a final decision in a proceeding on the merits, including a decision accepting the parties’ settlement of the case. The final decision in the proceeding on the merits may be an initial decision of a judge that has become final under


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5 CFR Ch. II (1–1–16 Edition) § 1201.203

§ 1201.113 of this part or a final decision of the Board.

[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 5409, Feb. 4, 2000; 77 FR 62373, Oct. 12, 2012; 78 FR 39546, July 2, 2013]

§ 1201.203 Proceedings for attorney fees.

(a) Form and content of request. A re-quest for attorney fees must be made by motion, must state why the appel-lant or respondent believes he or she is entitled to an award under the applica-ble statutory standard, and must be supported by evidence substantiating the amount of the request. Evidence supporting a motion for attorney fees must include at a minimum:

(1) Accurate and current time records;

(2) A copy of the terms of the fee agreement (if any);

(3) A statement of the attorney’s cus-tomary billing rate for similar work, with evidence that that rate is con-sistent with the prevailing community rate for similar services in the commu-nity in which the attorney ordinarily practices; and

(4) An established attorney-client re-lationship.

(b) Addendum proceeding. A request for attorney fees will be decided in an addendum proceeding.

(c) Place of filing. Where the initial decision in the proceeding on the mer-its was issued by a judge in a MSPB re-gional or field office, a motion for at-torney fees must be filed with the re-gional or field office that issued the initial decision. Where the decision in the proceeding on the merits was an initial decision issued by a judge at the Board’s headquarters or where the only decision was a final decision issued by the Board, a motion for attorney fees must be filed with the Clerk of the Board.

(d) Time of filing. A motion for attor-ney fees must be filed as soon as pos-sible after a final decision of the Board but no later than 60 days after the date on which a decision becomes final.

(e) Service. A copy of a motion for at-torney fees must be served on the other parties or their representatives at the time of filing. A party may file a plead-ing responding to the motion within

the time limit established by the judge.

(f) Hearing; applicability of subpart B. The judge may hold a hearing on a mo-tion for attorney fees and may apply appropriate provisions of subpart B of this part to the addendum proceeding.

(g) Initial decision; review by the Board. The judge will issue an initial decision in the addendum proceeding, which shall be subject to the provisions for a petition for review by the Board under subpart C of this part.

[63 FR 41179, Aug. 3, 1998, as amended at 65 FR 24381, Apr. 26, 2000]

§ 1201.204 Proceedings for consequen-tial, liquidated, or compensatory damages.

(a) Time for making request. (1) A re-quest for consequential, liquidated, or compensatory damages must be made during the proceeding on the merits, no later than the end of the conference(s) held to define the issues in the case.

(2) The judge or the Board, as appli-cable, may waive the time limit for making a request for consequential, liquidated, or compensatory damages for good cause shown. The time limit will not be waived if a party shows that such waiver would result in undue prej-udice.

(b) Form and content of request. A re-quest for consequential, liquidated, or compensatory damages must be made in writing and must state the amount of damages sought and the reasons why the appellant or respondent believes he or she is entitled to an award under the applicable statutory standard.

(c) Service. A copy of a request for consequential, liquidated, or compen-satory damages must be served on the other parties or their representatives when the request is made.

A party may file a pleading respond-ing to the request within the time limit established by the judge or the Board, as applicable.

(d) Addendum proceeding. (1) A re-quest for consequential, liquidated, or compensatory damages will be decided in an addendum proceeding.

(2) A judge may waive the require-ment of paragraph (d)(1), either on his or her own motion or on the motion of a party, and consider a request for damages in a proceeding on the merits


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Merit Systems Protection Board Pt. 1201, App. II

where the judge determines that such action is in the interest of the parties and will promote efficiency and econ-omy in adjudication.

(e) Initiation of addendum proceeding. (1) A motion for initiation of an adden-dum proceeding to decide a request for consequential, liquidated, or compen-satory damages must be filed as soon as possible after a final decision of the Board but no later than 60 days after the date on which a decision becomes final. Where the initial decision in the proceeding on the merits was issued by a judge in a MSPB regional or field of-fice, the motion must be filed with the regional or field office that issued the initial decision. Where the decision in the proceeding on the merits was an initial decision issued by a judge at the Board’s headquarters or where the only decision was a final decision issued by the Board, the motion must be filed with the Clerk of the Board.

(2) A copy of a motion for initiation of an addendum proceeding to decide a request for consequential, liquidated, or compensatory damages must be served on the other parties or their representatives at the time of filing. A party may file a pleading responding to the motion within the time limit es-tablished by the judge.

(f) Hearing; applicability of subpart B. The judge may hold a hearing on a re-quest for consequential, liquidated, or compensatory damages and may apply appropriate provisions of subpart B of this part to the addendum proceeding.

(g) Initial decision; review by the Board. The judge will issue an initial decision in the addendum proceeding, which shall be subject to the provisions for a petition for review by the Board under subpart C of this part.

(h) Request for damages first made in proceeding before the Board. Where a re-quest for consequential, liquidated, or compensatory damages is first made on petition for review of a judge’s initial decision on the merits and the Board waives the time limit for making the request in accordance with paragraph (a)(2) of this section, or where the re-quest is made in a case where the only MSPB proceeding is before the Board, including, for compensatory damages only, a request to review an arbitration

decision under 5 U.S.C. 7121(d), the Board may:

(1) Consider both the merits and the request for damages and issue a final decision;

(2) Remand the case to the judge for a new initial decision, either on the re-quest for damages only or on both the merits and the request for damages; or

(3) Where there has been no prior pro-ceeding before a judge, forward the re-quest for damages to a judge for hear-ing and a recommendation to the Board, after which the Board will issue a final decision on both the merits and the request for damages.

(i) EEOC review of decision on compen-satory damages. A final decision of the Board on a request for compensatory damages pursuant to the Civil Rights Act of 1991 shall be subject to review by the Equal Employment Opportunity Commission as provided under subpart E of this part.

[63 FR 41179, Aug. 3, 1998, as amended at 77 FR 62373, Oct. 12, 2012]


A final Board decision under this sub-part is subject to judicial review as provided under 5 U.S.C. 7703.

APPENDIX I TO PART 1201 [RESERVED]

APPENDIX II TO PART 1201—APPRO-PRIATE REGIONAL OR FIELD OFFICE FOR FILING APPEALS

All submissions shall be addressed to the Regional Director, if submitted to a regional office, or the Chief Administrative Judge, if submitted to a field office, Merit Systems Protection Board, at the addresses listed below, according to geographic region of the employing agency or as required by § 1201.4(d) of this part. The facsimile numbers listed below are TDD-capable; however, calls will be answered by voice before being connected to the TDD. Address of Appropriate Regional or Field Office and Area Served:

1. Atlanta Regional Office, 401 West Peach-tree Street, NW., 10th floor, Atlanta, Georgia 30308–3519, Facsimile No.: (404) 730–2767, (Ala-bama; Florida; Georgia; Mississippi; South Carolina; and Tennessee).

2. Central Regional Office, 230 South Dear-born Street, 31st floor, Chicago, Illinois 60604–1669, Facsimile No.: (312) 886–4231, (Illi-nois; Indiana; Iowa; Kansas City, Kansas; Kentucky; Michigan; Minnesota; Missouri; Ohio; and Wisconsin).


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3. Northeastern Regional Office, 1601 Mar-ket Street, Suite 1700, Philadelphia, PA 19103, Facsimile No.: (215) 597–3456, (Con-necticut; Delaware; Maine; Maryland—ex-cept the counties of Montgomery and Prince George’s; Massachusetts; New Hampshire; New Jersey—except the counties of Bergen, Essex, Hudson, and Union; Pennsylvania; Rhode Island; Vermont; and West Virginia).

3a. New York Field Office, 26 Federal Plaza, Room 3137–A, New York, New York 10278–0022, Facsimile No.: (212) 264–1417, (New Jersey—counties of Bergen, Essex, Hudson, and Union; New York; Puerto Rico; and Vir-gin Islands).

4. Washington Regional Office, 1901 S. Bell Street, Arlington, Virginia 22202, Facsimile No.: (703) 756–7112, (Maryland—counties of Montgomery and Prince George’s; North Carolina; Virginia; Washington, DC; and all overseas areas not otherwise covered).

5. Western Regional Office, 201 Mission Street, Suite 2310, San Francisco, California 94105–1831 Facsmile No.: (415) 904–0580, (Alas-ka; California; Hawaii; Idaho; Nevada; Or-egon; Washington; and Pacific overseas areas).

5a. Denver Field Office, 165 South Union Blvd., Suite 318, Lakewood, Colorado 80228– 2211, Facsimile No.: (303) 969–5109, (Arizona; Colorado; Kansas—except Kansas City; Mon-tana; Nebraska; New Mexico; North Dakota; South Dakota; Utah; and Wyoming).

6. Dallas Regional Office, 1100 Commerce Street, Room 620, Dallas, Texas 75242–9979, Facsimile No.: (214) 767–0102, (Arkansas; Lou-isiana; Oklahoma; and Texas).

[69 FR 11503, Mar. 11, 2004, as amended at 69 FR 61991, Oct. 22, 2004; 72 FR 40215, July 24, 2007; 73 FR 2143, Jan. 14, 2008; 78 FR 43971, July 23, 2013]

APPENDIX III TO PART 1201 [RESERVED]

APPENDIX IV TO PART 1201—SAMPLE DECLARATION UNDER 28 U.S.C.1746

Declaration

I, lllllllllll, do hereby declare: I declare under penalty of perjury under

the laws of the United States of America that the foregoing is true and correct. Executed on llllllllllllllllllllllll

Date

llllllllllllllllllllllll

Signature

PART 1202—STATUTORY REVIEW BOARD

AUTHORITY: 5 U.S.C. 1204.

§ 1202.1 Designating Chairman of Stat-utory Review Board.

At the written request of the Depart-ment of Transportation, the Chairman of the Board will designate a presiding official of the Board to serve as the Chairman of any Board of Review es-tablished by the Secretary of Transpor-tation under 5 U.S.C. 3383(b) to review certain actions to remove air traffic controllers.

[54 FR 28658, July 6, 1989]

PART 1203—PROCEDURES FOR RE-VIEW OF RULES AND REGULA-TIONS OF THE OFFICE OF PER-SONNEL MANAGEMENT

GENERAL

Sec. 1203.1 Scope; application of part 1201, sub-

part B. 1203.2 Definitions.

PROCEDURES FOR REVIEW

1203.11 Request for regulation review. 1203.12 Granting or denying the request for

regulation review. 1203.13 Filing pleadings. 1203.14 Serving documents. 1203.15 Review of regulations on the Board’s

own motion. 1203.16 Proceedings.

ORDER OF THE BOARD

1203.21 Final order of the Board. 1203.22 Enforcement of order.

AUTHORITY: 5 U.S.C. 1204(a), 1204(f), and 1204(h).

SOURCE: 54 FR 23632, June 2, 1989, unless otherwise noted.

GENERAL

§ 1203.1 Scope; application of part 1201, subpart B.

(a) General. This part applies to the Board’s review, under 5 U.S.C. 1204(a)(4) and 1204(f), of any rules or regulations (‘‘regulations’’) issued by the Office of Personnel Management (OPM). It ap-plies to the Board’s review of the way in which an agency implements regula-tions, as well as to its review of the va-lidity of the regulations on their face.

(b) Application of 5 CFR part 1201, sub-parts B and C. (1) Where appropriate, and unless the Board’s regulations pro-vide otherwise, the Board may apply


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the provisions of 5 CFR part 1201, sub-part B to proceedings conducted under this part. It may do so on its own mo-tion or on the motion of a party to these proceedings.

(2) The following provisions of 5 CFR part 1201, subparts B and C do not apply to proceedings conducted under this part:

(i) Sections 1201.21 through 1201.27 which concern petitions for appeal of agency actions, and the pleadings that are filed in connection with those peti-tions; and

(ii) Sections 1201.111 through 1201.119 which concern final decisions of pre-siding officials, and petitions for Board review of those decisions.

[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989]

§ 1203.2 Definitions.

(a) Invalid regulation means a regula-tion that has been issued by OPM, and that, on its face, would require an em-ployee to commit a prohibited per-sonnel practice if any agency imple-mented the regulation.

(b) Invalidly implemented regulation means a regulation, issued by OPM, whose implementation by an agency has required an employee to commit a prohibited personnel practice. A valid regulation may be invalidly imple-mented.

(c) Merit system principles are the principles stated in 5 U.S.C. 2301(b)(1) through 2301(b)(9).

(d) Pleadings are written submissions containing claims, allegations, argu-ments, or evidence. They include briefs, motions, requests for regulation review, responses, replies, and attach-ments that are submitted in connec-tion with proceedings under this part.

(e) Prohibited personnel practices are the impermissible actions described in 5 U.S.C. 2302(b)(1) through 2302(b)(12).

(f) Regulation review means the proce-dure under which the Board, under 5 U.S.C. 1204(f), reviews regulations issued by OPM on their face, or reviews those regulations as they have been implemented, or both, in order to de-termine whether the regulations re-quire any employee to commit a pro-hibited personnel practice.

(g) Request for regulation review means a request that the Board review a regu-lation issued by OPM.

[54 FR 23632, June 2, 1989, as amended at 54 FR 28658, July 6, 1989; 77 FR 62373, Oct. 12, 2012]

PROCEDURES FOR REVIEW

§ 1203.11 Request for regulation re-view.

(a) An interested person or the Spe-cial Counsel may submit a request for regulation review.

(b) Contents of request. (1) Each re-quest for regulation review must in-clude the following information:

(i) The name, address, and signature of the requester’s representative or, if the requester has no representative, of the requester;

(ii) A citation identifying the regula-tion being challenged;

(iii) A statement (along with any rel-evant documents) describing in detail the reasons why the regulation would require an employee to commit a pro-hibited personnel practice; or the rea-sons why the implementation of the regulation requires an employee to commit a prohibited personnel prac-tice;

(iv) Specific identification of the pro-hibited personnel practice at issue; and

(v) A description of the action the re-quester would like the Board to take.

(2) If the prohibited personnel prac-tice at issue is one prohibited by 5 U.S.C. 2302(b)(12), the request must in-clude the following additional informa-tion:

(i) Identification of the law or regula-tion that allegedly would be or has been violated, and how it would be or has been violated; and

(ii) Identification of the merit sys-tem principles at issue and an expla-nation of the way in which the law or regulation at issue implements or di-rectly concerns those principles.

[54 FR 23632, June 2, 1989, as amended at 65 FR 57939, Sept. 27, 2000]

§ 1203.12 Granting or denying the re-quest for regulation review.

(a) The Board, in its sole discretion, may grant or deny an interested per-son’s request for regulation review. It


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5 CFR Ch. II (1–1–16 Edition) § 1203.13

will grant a request for regulation re-view that the Special Counsel submits. It will not, however, review a regula-tion before its effective date.

(b) After considering the request for regulation review, the Board will issue an order granting or denying the re-quest in whole or in part. Orders in which the Board grants the request, in whole or in part, will identify the agen-cy or agencies involved, if any. They also will include the following:

(1) A citation identifying the regula-tion being challenged;

(2) A description of the issues to be addressed;

(3) The docket number assigned to the proceedings; and

(4) Instructions covering the review proceedings, including information re-garding the time limits for filing sub-missions related to the request.

[54 FR 23632, June 2, 1989, as amended at 56 FR 41749, Aug. 23, 1991]

§ 1203.13 Filing pleadings. (a) Place to file and number of copies.

One original and three copies of each pleading must be filed with the Office of the Clerk, U.S. Merit Systems Pro-tection Board, 1615 M Street, NW., Washington, DC 20419. In addition, par-ties to a proceeding under this part must serve their pleadings on each other in accordance with § 1203.14 of this part. The Office of the Clerk will make all pleadings available for review by the public.

(b) Time limits. (1) A request for regu-lation review may be filed any time after the effective date of the regula-tion.

(2) A response to a request for regula-tion review, whether the response sup-ports or opposes the request, must be filed within the time period provided in the Board order granting the request for review.

(3) A reply to a response may be filed within 10 days after the response is filed. The reply may address only those matters raised in the response that were not addressed in the request for regulation review.

(4) Motions may be filed at any time during the regulation review. The fil-ing of a motion will not delay the act-ing of the Board unless the Board or-ders a postponement. The Board may

rule immediately on a motion for an extension of time or a continuance if circumstances make consideration of others’ views regarding the motion im-practicable.

(5) Submissions opposing motions must be filed within five days after the opposing party receives the motion.

(c) Additional pleadings. The Board will consider pleadings in addition to those mentioned above only if the Board requests them, or if it grants a request that it consider them.

(d) Method and date of filing. An ini-tial filing in a request for review of a regulation may be filed with the Office of the Clerk by mail, by commercial or personal delivery, or by facsimile. Pleadings, other than an initial request for a regulation review under this part, may be filed with the Office of the Clerk by mail, by commercial or per-sonal delivery, by facsimile, or by e-fil-ing in accordance with § 1201.14 of this chapter. If the document was sub-mitted by certified mail, it is consid-ered to have been filed on the mailing date. If it was submitted by regular mail, it is presumed to have been filed five days before the Office of the Clerk receives it, in the absence of evidence contradicting that presumption. If it was delivered personally, it is consid-ered to have been filed on the date the Office of the Clerk receives it. If it was submitted by facsimile, the date of the facsimile is considered to be the filing date. If it was submitted by commer-cial delivery, the date of filing is the date it was delivered to the commer-cial delivery service. If it was sub-mitted by e-filing, it is considered to have been filed on the date of elec-tronic submission.

(e) Extensions of time. The Board will grant a request for extension of time only when good cause is shown.

[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994; 65 FR 48885, Aug. 10, 2000; 68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]

§ 1203.14 Serving documents. (a) Parties. In every case, the person

requesting regulation review must serve a copy of the request on the Di-rector of OPM. In addition, when the implementation of a regulation is being challenged, the requester must


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also serve a copy of the request on the head of the implementing agency. A copy of all other pleadings must be served, by the person submitting the pleading, on each other party to the proceeding.

(b) Method of serving documents. Pleadings may be served on parties by mail, by personal delivery, by fac-simile, or by commercial delivery. Service by mail is accomplished by mailing the pleading to each party or representative, at the party’s or rep-resentative’s last known address. Serv-ice by facsimile is accomplished by transmitting the pleading by facsimile to each party or representative. Serv-ice by personal delivery or by commer-cial delivery is accomplished by deliv-ering the pleading to the business of-fice or home of each party or represent-ative and leaving it with the party or representative, or with a responsible person at that address. Regardless of the method of service, the party serv-ing the document must submit to the Board, along with the pleading, a cer-tificate of service as proof that the document was served on the other par-ties or their representatives. The cer-tificate of service must list the names and addresses of the persons on whom the pleading was served, must state the date on which the pleading was served, must state the method (i.e., mail, per-sonal delivery, facsimile, or commer-cial delivery) by which service was ac-complished, and must be signed by the person responsible for accomplishing service.

(c) Electronic filing. Other than the initial request for a regulation review, pleadings in a regulation review pro-ceeding may be filed with the Board and served upon other parties by elec-tronic filing, provided the require-ments of § 1201.14 of this chapter are satisfied.

[54 FR 23632, June 21, 1989, as amended at 59 FR 65242, Dec. 19, 1994; 68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]

§ 1203.15 Review of regulations on the Board’s own motion.

The Board may, from time to time, review a regulation on its own motion under 5 U.S.C. 1204(f)(1)(A). When it

does so, it will publish notice of the re-view in the FEDERAL REGISTER.

[54 FR 28658, July 6, 1989]

§ 1203.16 Proceedings. The Board has substantial discretion

in conducting a regulation review under this part. It may conduct a re-view on the basis of the pleadings alone, or on the basis of the pleadings along with any or all of the following:

(a) Additional written comments; (b) Oral argument; (c) Evidence presented at a hearing;

and/or (d) Evidence gathered through any

other appropriate procedures that are conducted in accordance with law.

ORDER OF THE BOARD

§ 1203.21 Final order of the Board. (a) Invalid regulation. If the Board de-

termines that a regulation is invalid on its face, in whole or in part, it will re-quire any agency affected by the order to stop complying with the regulation, in whole or in part. In addition, it may order other remedial action that it finds necessary.

(b) Invalidly implemented regulation. If the Board determines that a regulation has been implemented invalidly, in whole or in part, it will require af-fected agencies to terminate the in-valid implementation.

(c) Corrective action. The Board may order corrective action necessary to ensure compliance with its order. The action it may order includes, but is not limited to, the following:

(1) Cancellation of any personnel ac-tion related to the prohibited personnel practice;

(2) Rescission of any action related to the cancelled personnel action;

(3) Removal of any reference, record, or document within an employee’s offi-cial personnel folder that is related to the prohibited personnel practice;

(4) Award of back pay and benefits; (5) Award of attorney fees; (6) Other remedial measures to re-

verse the effects of a prohibited per-sonnel practice; and

(7) The agency’s submission of a verified report of its compliance with the Board’s order.


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5 CFR Ch. II (1–1–16 Edition) § 1203.22

§ 1203.22 Enforcement of order.

(a) Any party may ask the Board to enforce a final order it has issued under this part. The request may be made by filing a petition for enforcement with the Office of the Clerk of the Board and by serving a copy of the petition on each party to the regulation review. The request may be filed in electronic form, provided the requirements of § 1201.14 are satisfied. The petition must include specific reasons why the petitioning party believes that there has been a failure to comply with the Board’s order.

(b) The Board will take all action necessary to determine whether there has been compliance with its final order. If it determines that there has been a failure to comply with the order, it will take actions necessary to obtain compliance.

(c) Where appropriate, the Board may initiate the enforcement procedures de-scribed in 5 CFR 1201.183(c).

[54 FR 23632, June 2, 1989, as amended at 68 FR 59864, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]

PART 1204—AVAILABILITY OF OFFICIAL INFORMATION

Subpart A—Purpose and Scope

Sec. 1204.1 Purpose. 1204.2 Scope.

Subpart B—Procedures for Obtaining Records Under the Freedom of Infor-mation Act

1204.11 Requests for access to Board records. 1204.12 Fees. 1204.13 Denials. 1204.14 Requests for access to confidential

commercial information. 1204.15 Records of other agencies.

Subpart C—Appeals

1204.21 Submission. 1204.22 Decision on appeal.

AUTHORITY: 5 U.S.C. 552 and 1204, Pub. L. 99–570, Pub. L. 104–231, and E.O. 12600.


Subpart A—Purpose and Scope § 1204.1 Purpose.

This part implements the Freedom of Information Act (FOIA), 5 U.S.C. 552, as amended, by stating the procedures to follow when requesting information from the Board, and by stating the fees that will be charged for that informa-tion.

§ 1204.2 Scope. (a) For the purpose of this part, the

term record and any other term used in reference to information includes any information that would be a Board record subject to the requirements of 5 U.S.C. 552 when maintained by the Board in any format including an elec-tronic format. All written requests for information that are not processed under part 1205 of this chapter will be processed under this part. The Board may continue, without complying with this part, to furnish the public with the information it has furnished in the reg-ular course of performing its official duties, unless furnishing the informa-tion would violate the Privacy Act of 1974, 5 U.S.C. 552a, or another law.

(b) When the subject of the record, or the subject’s representative, requests a record from a Privacy Act system of records, as that term is defined by 5 U.S.C. 552a(a)(5), and the Board re-trieves the record by the subject’s name or other personal identifier, the Board will handle the request under the procedures and fees shown in part 1205 of this chapter. When a third party requests access to those records, with-out the written consent of the subject of the record, the Board will handle the request under this part.

(c) When a party to an appeal re-quests a copy of a tape recording, video tape, or transcript (if one has been pre-pared) of a hearing that the Board or a judge held under part 1201 or part 1209 of this chapter, the Board will handle the request under § 1201.53 of this chap-ter. When someone other than a party to the appeal makes this request, the Board will handle the request under this part.

(d) In accordance with 5 U.S.C. 552(a)(2), the Board’s final opinions and orders (including concurring and dis-senting opinions), those statements of


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policy and interpretations adopted by the Board and that are not published in the FEDERAL REGISTER, administrative staff manuals and instructions to staff that affect a member of the public, and agency records processed and disclosed in response to a FOIA request that the Board determines have been or are likely to become the subject of addi-tional requests for basically the same records and a general index of those records, are available for public review and copying in the Board’s Head-quarters’ Library, 1615 M Street, NW., Washington, DC 20419–0001, and on the Board’s World Wide Web site at http:// www.mspb.gov.


Subpart B—Procedures for Obtain-ing Records Under the Free-dom of Information Act

§ 1204.11 Request for access to Board records.

(a) Sending a request. A person may request a Board record under this part by writing to the office that has the record. If the requester believes that the records are located in a regional or field office, the request must be sent to that office. A list of the addresses of the Board’s regional and field offices are in appendix II of part 1201 of this chapter and on the Board’s World Wide Web site at http://www.mspb.gov. Other requests must be sent to the Clerk of the Board, 1615 M Street, NW., Wash-ington, DC 20419–0001. Requests sent under this part must be clearly marked ‘‘Freedom of Information Act Request’’ on both the envelope and the request.

(b) Description. A request must de-scribe the records wanted in enough de-tail for Board employees to locate the records with no more than a reasonable effort. Wherever possible, a request must include specific information about each record, such as the date, title or name, author, recipient, and subject matter of the record. In addi-tion, if the request asks for records on cases decided by the Board, it must show the title of the case, the MSPB docket number, and the date of the de-cision.

(c) Time limits and decisions. If a re-quest is not properly labeled or is sent to the wrong office, the time for proc-essing the request will begin when the proper office receives it. Requests to the Board’s headquarters will be de-cided by the Clerk of the Board. Re-quests to one of the regional or field of-fices will be decided by the Regional Director or Chief Administrative Judge. The Board will decide a request within 20 workdays after the appro-priate office receives it, except under the conditions that follow.

(1) Extension of time. If ‘‘unusual cir-cumstances’’ exist, the Board may ex-tend the time for deciding the request by no more than 10 additional work-days. An example of unusual cir-cumstances could be the need to find and retrieve records from regional or field offices or from federal records centers or the need to search, collect and or examine a large number of records which are demanded in a single request, or the need to talk to another agency with a substantial interest in the determination of the request. When the Board extends the time to decide the request, it will inform the re-quester in writing and describe the ‘‘unusual circumstances’’, and it will state a date on which a decision on the request will be made. If the ‘‘unusual circumstances’’ are such that the Board cannot comply with the request within the time limit, the Board will offer the requester an opportunity:

(i) To limit the request so that it may be processed within the time limit, or

(ii) To arrange with the Board a dif-ferent time frame for processing the re-quest or a changed request.

(2) Expedited processing. Where a re-quester shows a ‘‘compelling need’’ and in other cases determined by the Board, a decision whether to provide expedited processing of a request and notification of that decision to the re-quester will be made within 10 work-days of the date of the request. An ex-ample of a compelling need could be that a failure to obtain the records ex-peditiously could reasonably be ex-pected to be a threat to the life or physical safety of a person or that there is urgency to inform the public


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5 CFR Ch. II (1–1–16 Edition) § 1204.12

about actual or alleged Federal Gov-ernment activity by a person primarily engaged in distributing information. Where the Board approves expeditious processing, the Board will process the request within 5 workdays from the date of the decision to grant the expe-ditious processing. If, in order to fully satisfy the request, the Board requires the standard or additional processing time, or if it decides that good cause for expedited processing has not been made, it will provide written notice of its decision to the requester and will inform the requester of the right to ad-ministrative and court review of the decision. A showing of a compelling need must be made by a statement cer-tified to be true to the best of the re-quester’s knowledge and belief.


§ 1204.12 Fees. (a) General. The Board will charge the

requester fees for services provided in processing requests for information. Those fees will be charged according to the schedule in paragraph (d) of this section, and will recover the full allow-able direct costs that the Board incurs. Fees may be charged for time spent searching for information, even if the Board fails to locate responsive records, and even if it determines that the information is exempt from disclo-sure.

(b) Definitions. (1) The term direct costs means the costs to an agency for searching for and copying (and in the case of commercial requesters, review-ing) documents to respond to a FOIA request. Direct costs include, for exam-ple, the salary of each employee per-forming work at the rate of $5 per quarter hour. Overhead expenses, such as costs of space and of heating or lighting the facility in which the records are stored, are not included in direct costs.

(2) The term search, as defined by 5 U.S.C. 552(a)(3)(D), means either man-ual or automated review of Board records to locate those records asked for, and includes all time spent looking for material in response to a request, including page-by-page or line-by-line identification of material within docu-ments. Searches will be done in the

most efficient and least expensive way to limit costs for both the Board and the requester. Searches may be done manually or by computer using exist-ing programming. The Board will make a reasonable effort to search for the records in electronic form or format, except when such effort would interfere to a large extent with the operation of the Board’s automated information system.

(3) The term duplication means the process of copying a document or elec-tronically maintained information in response to a FOIA request. Copies can take the form of paper, microfilm, audio-visual materials, or machine- readable documentation (e.g., magnetic tape or disk), among others. The copy provided will be in a form or format re-quested if the record is readily repro-ducible by the Board in that form or format. The Board will make a reason-able effort to maintain its records in forms or formats that are reproducible.

(4) The term review includes the proc-ess of examining documents to deter-mine whether any portion of them may be exempt from disclosure under the FOIA, when the documents have been located in response to a request that is for a commercial use. The term also in-cludes processing any documents for disclosure, e.g., doing all that is nec-essary to edit them and otherwise pre-pare them for release. Review does not include time spent resolving general legal or policy issues.

(5) The term commercial use request means a request from or on behalf of one who seeks information for a use or purpose that furthers the commercial, trade, or profit interests of the re-quester or the person on whose behalf the request is made. In deciding wheth-er a requester properly belongs in this category, the Board will decide the use the requester will make of the docu-ments requested. Also, where the Board has reasonable cause to doubt the use a requester will make of the records re-quested, or where that use is not clear from the request, the Board will seek additional clarification before assign-ing the request to a specific category.

(6) The term educational institution means a preschool, a public or private elementary or secondary school, an in-stitution of graduate higher education,


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an institution of undergraduate higher education, an institution of profes-sional education, or an institution of vocational education that operates a program or programs of scholarly re-search.

(7) The term noncommercial scientific institution means an institution that is not operated on a ‘‘commercial’’ basis as that term is used above, and that is operated solely for the purpose of con-ducting scientific research whose re-sults are not intended to promote any particular product or industry.

(8) The term representative of the news media means any person actively gath-ering news for an entity that is orga-nized and operated to publish or broad-cast news to the public. The term news means information that concerns cur-rent events or that would be of current interest to the public.

(c) Categories of requesters. There are four categories of FOIA requesters: Commercial use requesters; edu-cational and noncommercial scientific institutions; representatives of the news media; and all other requesters. To be included in the category of edu-cational and noncommercial scientific institutions, requesters must show that the request is authorized by a quali-fying institution and that they are seeking the records not for a commer-cial use, but to further scholarly or sci-entific research. To be included in the news media category, a requester must meet the definition in paragraph (b)(8) of this section and the request must not be made for a commercial use. To avoid commercial use charges, request-ers must show that they should be in-cluded in a category or categories other than that of commercial use re-questers. The Board will decide the cat-egories to place requesters for fee pur-poses. It will make these determina-tions based on information given by the requesters and information other-wise known to the Board.

(d) The Board will not charge a re-quester if the fee for any request is less that $100 (the cost to the Board of proc-essing and collecting the fee).

(1) When the Board receives a re-quest:

(i) From a commercial use requester, it will charge fees that recover the full direct costs for searching for the infor-

mation requested, reviewing it for re-lease at the initial request stage, re-viewing it after an appeal to determine whether other exemptions not consid-ered before the appeal apply to it, and copying it.

(ii) From an educational and non-commercial scientific institution or, to the extent copying exceeds 100 pages, from a representative of the news media, it will charge fees only for the cost of copying the requested informa-tion.

(iii) From all other requesters, to the extent copying exceeds 100 pages and search time exceeds 2 hours, it will charge fees for the full direct cost of searching for and copying requested records.

(2) When the Board reasonably be-lieves that a requester or group of re-questers is attempting to divide a re-quest into more than one request to avoid payment of fees, the Board will combine the requests and charge fees accordingly. The Board will not com-bine multiple requests on unrelated subjects from one requester.

(3) When the Board decides that charges for a request are likely to ex-ceed $250, the Board will require the re-quester to pay the entire fee in advance before continuing to process the re-quest.

(4) When a requester has an out-standing fee charge or has not paid a fee on time, the Board will require the requester to pay the full amount of the estimated fee in advance before the Board begins to process a new or pend-ing request from that requester, and before it applies administrative time limits for making a decision on the new or pending request.

(e) Fee schedule. (1) Fees for docu-ment searches for records will be charged at a rate of $5 per quarter hour spent by each Board employee per-forming the search.

(2) Fees for computer searches for records will be $5 per quarter hour spent by each employee operating the computer equipment and/or developing a new inquiry or report.

(3) Fees for review at the initial ad-ministrative level to determine wheth-er records or portions of records are ex-empt from disclosure, and for review after an appeal to determine whether


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the records are exempt on other legal grounds, will be charged, for commer-cial use requests, at a rate of $5 per quarter hour spent by each reviewing employee.

(4) Fees for photocopying records is 20 cents a page, the fee for copying audio tapes is the direct cost up to $15 per cassette tape; the fee for copying video tapes is the direct cost up to $20 per tape; and the fee for computer printouts is 10 cents a page. The fee for duplication of electronically main-tained information in the requester’s preferred format will be $21 for copying computer tapes and $4 for copying records on computer diskettes, if it is feasible for the Board to reproduce records in the format requested. Fees for certified copies of the Board’s records will include a $4 per page charge for each page displaying the Board’s seal and certification. When the Board estimates that copying costs will exceed $100, it will notify the re-quester of the estimated amount unless the requester has indicated in advance a willingness to pay an equal or higher amount.

(f) Fee waivers. (1) Upon request, the Clerk of the Board, Regional Director, or Chief Administrative Judge, as ap-propriate, will furnish information without charge or at reduced rates if it is established that disclosure ‘‘is in the public interest because it is likely to contribute significantly to public un-derstanding of the operations or activi-ties of the government.’’ This decision will be based on:

(i) The subject of the request: Wheth-er the subject of the requested records concerns the operations or activities of the government;

(ii) The informative value of the in-formation to be disclosed: Whether the disclosure is likely to contribute to an understanding of government oper-ations or activities;

(iii) Whether disclosure of the re-quested information is likely to con-tribute to public understanding of the subject of the disclosure; and

(iv) The significance of the contribu-tion the disclosure would make to pub-lic understanding of government oper-ations or activities.

(2) If information is to be furnished without charge or at reduced rates, the

requester must also establish that dis-closure of the information is not pri-marily in the commercial interest of the requester. This decision will be based on:

(i) Whether the requester has a com-mercial interest that would be furthered by the requested disclosure; and, if so,

(ii) Whether the identified commer-cial interest of the requester is suffi-ciently large, in comparison with the public interest in disclosure, that dis-closure is primarily in the commercial interest of the requester.

(3) The requester must establish eli-gibility for a waiver of fees or for re-duced fees. The denial of a request for waiver of fees may be appealed under subpart C of this part.

§ 1204.13 Denials. (a) The Board may deny: A request

for reduced fees or waiver of fees; a re-quest for a record, either in whole or in part; a request for expeditious proc-essing based on the requester’s compel-ling need; or a request that records be released in a specific electronic format. The denial will be in writing, will state the reasons, and will notify the re-quester of the right to appeal.

(b) If the Board applies one or more of the exemptions provided under the FOIA to deny access to some or all of the information requested, it will re-spond in writing, identifying for the re-quester the specific exemption(s), pro-viding an explanation as to why the ex-emption(s) to withhold the requested information must be applied, and pro-viding an estimate of the amount of material that has been denied to the requester, unless providing such an es-timate would harm an interest pro-tected by the exemptions.

(c) The amount of information de-leted will be indicated on the released portion of the record at the place in the record where the deletion is made, if technically feasible and unless the indication would harm an interest pro-tected by the exemption under which the deletion is made.

§ 1204.14 Requests for access to con-fidential commercial information.

(a) General. Confidential commercial information provided to the Board by a


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business submitter will not be dis-closed in response to a FOIA request except as required by this section.

(b) Definitions. (1) The term confiden-tial commercial information means records provided to the government by a submitter that are believed to con-tain material exempt from release under Exemption 4 of the Freedom of Information Act, 5 U.S.C. 552(b)(4), be-cause disclosure could reasonably be expected to cause substantial competi-tive harm.

(2) The term submitter means any per-son or organization that provides con-fidential commercial information to the government. The term submitter in-cludes, but is not limited to, corpora-tions, state governments, and foreign governments.

(c) Notice to business submitters. The Board will provide a business submitter with prompt written notice of a re-quest for its confidential commercial information whenever such written no-tice is required under paragraph (d) of this section. Exceptions to such writ-ten notice are at paragraph (h) of this section. This written notice will either describe the exact nature of the con-fidential information requested or pro-vide copies of the records or parts of records containing the commercial in-formation.

(d) When initial notice is required. (1) With respect to confidential commer-cial information received by the Board before January 1, 1988, the Board will give the business submitter notice of a request whenever:

(i) The information is less than 10 years old; or

(ii) The Board has reason to believe that releasing the information could reasonably be expected to cause sub-stantial competitive harm.

(2) With respect to confidential com-mercial information received by the Board on or after January 1, 1988, the Board will give notice to the business submitter whenever:

(i) The business submitter has des-ignated the information in good faith as commercially or financially sen-sitive information; or

(ii) The Board has reason to believe that releasing the information could reasonably be expected to cause sub-stantial competitive harm.

(3) Notice of a request for commer-cially confidential information that was received by January 1, 1988, is re-quired for a period of not more than 10 years after the date on which the infor-mation is submitted unless the busi-ness submitter requests, and provides justification for, a longer specific no-tice period. Whenever possible, the sub-mitter’s claim of confidentially must be supported by a statement or certifi-cation, by an officer or authorized rep-resentative of the company, that the information in question is confidential commercial information and has not been disclosed to the public.

(e) Opportunity to object to disclosure. Through the notice described in para-graph (c) of this section, the Board will give a business submitter a reasonable period to provide a detailed statement of any objection to disclosure. The statement must specify all grounds for withholding any of the information under any exemption of the Freedom of Information Act. In addition, in the case of Exemption 4, the statement must state why the information is con-sidered to be a trade secret, or to be commercial or financial information that is privileged or confidential. Infor-mation a business submitter provides under this paragraph may itself be sub-ject to disclosure under the Freedom of Information Act.

(f) Notice of intent to release informa-tion. The Board will consider carefully a business submitter’s objections and specific grounds for claiming that the information should not be released be-fore determining whether to release confidential commercial information. Whenever the Board decides to release confidential commercial information over the objection of a business sub-mitter, it will forward to the business submitter a written notice that in-cludes:

(1) A statement of the reasons for which the business submitter’s objec-tions to the release were not sufficient;

(2) A description of the confidential commercial information to be released; and

(3) A specified release date. The Board will forward the notice of intent to re-lease the information a reasonable number of days, as circumstances per-mit, before the specified date upon


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which release is expected. It will for-ward a copy of the release notice to the requester at the same time.

(g) Notice of Freedom of Information Act lawsuit. Whenever a requester files a lawsuit seeking to require release of business information covered by para-graph (d) of this section, the Board will notify the business submitter prompt-ly.

(h) Exceptions to notice requirements. The notice requirements of this section do not apply when:

(1) The Board decides that the infor-mation should not be released;

(2) The information lawfully has been published or otherwise made available to the public;

(3) Disclosure of the information is required by law (other than 5 U.S.C. 552); or

(4) The disclosure is required by an agency rule that:

(i) Was adopted after notice and pub-lic comment;

(ii) Specifies narrow classes of records submitted to the agency that are to be released under the FOIA; or

(iii) Provides in exceptional cir-cumstances for notice when the sub-mitter provides written justification, at the time the information is sub-mitted or a reasonable time thereafter, that release of the information could reasonably be expected to cause sub-stantial competitive harm.

(5) The information requested is not designated by the submitter as exempt from release according to agency regu-lations issued under this section, when the submitter has an opportunity to do so at the time of sending the informa-tion or a reasonable time thereafter, unless the agency has good reason to believe that disclosure of the informa-tion would result in competitive harm; or

(6) The designation made by the sub-mitter according to Board regulations appears obviously frivolous; except that, in such case, the Board must pro-vide the submitter with written notice of any final administrative release de-cision within a reasonable period be-fore the stated release date.

§ 1204.15 Records of other agencies. Requests for Board records that were

created by another agency may, in ap-

propriate circumstances, be referred to that agency for discussion or proc-essing. In these instances, the Board will notify the requester.

Subpart C—Appeals § 1204.21 Submission.

(a) A person may appeal the fol-lowing actions, or failure to act by the Clerk of the Board, a Regional Direc-tor, or Chief Administrative Judge:

(1) A denial of access to agency records;

(2) A denial of a request for a waiver or reduced fees;

(3) A decision that it is technically not possible to reproduce electroni-cally maintained information in the re-quester’s preferred format;

(4) A denial of a request for expedited processing of information under this part; or

(5) A failure to decide a request for expedited processing within 10 work-days from the date of the request.

(b) Appeals must be filed with the Chairman, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419–0001 within 10 workdays from the date of the denial. Any appeal must include a copy of the initial request, a copy of the letter denying the request, and a statement of the reasons why the requester believes the denying em-ployee erred.


§ 1204.22 Decision on appeal. A decision on an appeal will be made

within 20 workdays after the appeal is received. A decision not to provide ex-peditious processing of a request will be made within 15 workdays after the appeal is received. The decision will be in writing and will contain the reasons for the decision and information about the appellant’s right to seek court re-view of the denial.

PART 1205—PRIVACY ACT REGULATIONS

Subpart A—General Provisions

Sec. 1205.1 Purpose. 1205.2 Policy and scope.


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1205.3 Definitions. 1205.4 Disclosure of Privacy Act records.

Subpart B—Procedures for Obtaining Records

1205.11 Access to Board records. 1205.12 Time limits and determinations. 1205.13 Identification. 1205.14 Granting access. 1205.15 Denying access. 1205.16 Fees.

Subpart C—Amendment of Records

1205.21 Request for amendment. 1205.22 Action on request. 1205.23 Time limits.

Subpart D—Appeals

1205.31 Submitting appeal. 1205.32 Decision on appeal.

AUTHORITY: 5 U.S.C. 552a and 1204.



§ 1205.1 Purpose.

This subpart implements the Privacy Act of 1974, 5 U.S.C. 552a, (‘‘the Act’’) by stating the procedures by which in-dividuals may determine the existence of, seek access to, and request amend-ment of Board records concerning themselves, and by stating the require-ments that apply to Board employees’ use and disclosure of those records.

§ 1205.2 Policy and scope.

The Board’s policy is to apply these regulations to all records that can be retrieved from a system of records under the Board’s control by using an individual’s name or by using a num-ber, symbol, or other way to identify the individual. These regulations, how-ever, do not govern the rights of the parties in adversary proceedings before the Board to obtain discovery from ad-verse parties; those rights are governed by part 1201 and part 1209 of this chap-ter. These regulations also are not meant to allow the alteration, either before or after the Board has issued a decision on an appeal, of evidence pre-sented during the Board’s adjudication of the appeal.


The definitions of 5 U.S.C. 552a apply to this part. In addition, as used in this part:

(a) Inquiry means a request by an in-dividual regarding whether the Board has a record that refers to that indi-vidual.

(b) Request for access means a request by an individual to look at or copy a record.

(c) Request for amendment means a re-quest by an individual to change the substance of a particular record by ad-dition, deletion, or other correction.

(d) Requester means the individual re-questing access to or amendment of a record. The individual may be either the person to whom the requested record refers, a legal guardian acting on behalf of the individual, or a rep-resentative designated by that indi-vidual.

§ 1205.4 Disclosure of Privacy Act records.

(a) Except as provided in 5 U.S.C. 552a(b), the Board will not disclose any personal record information from sys-tems of records it maintains to any in-dividual other than the individual to whom the record refers, or to any other agency, without the express written consent of the individual to whom the record refers, or his or her representa-tive or attorney.

(b) The Board’s staff will take nec-essary steps, in accordance with the law and these regulations, to protect the security and integrity of the records and the personal privacy inter-ests of the subjects of the records.

Subpart B—Procedures for Obtaining Records

§ 1205.11 Access to Board records.

(a) Submission of request. Inquiries or requests for access to records must be submitted to the appropriate regional or field office of the Board, or to the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419–0001. If the re-quester has reason to believe that the records are located in a regional or


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field office, the request must be sub-mitted to that office. Requests sub-mitted to the regional or field office must be addressed to the Regional Di-rector or Chief Administrative Judge at the appropriate regional or field of-fice listed in appendix II of 5 CFR part 1201.

(b) Form. Each submission must con-tain the following information:

(1) The name, address, and telephone number of the individual to whom the record refers;

(2) The name, address, and telephone number of the individual making the request if the requester is someone other than the person to whom the record refers, such as a legal guardian or an attorney, along with evidence of the relationship. Evidence of the rela-tionship may consist of an authenti-cated copy of:

(i) The birth certificate of the minor child, and

(ii) The court document appointing the individual legal guardian, or

(iii) An agreement for representation signed by the individual to whom the record refers;

(3) Any additional information that may assist the Board in responding to the request, such as the name of the agency that may have taken an action against an individual, or the docket number of the individual’s case;

(4) The date of the inquiry or request; (5) The inquirer’s or requester’s sig-

nature; and (6) A conspicuous indication, both on

the envelope and the letter, that the inquiry is a ‘‘PRIVACY ACT RE-QUEST’’.

(c) Identification. Each submission must follow the identification require-ments stated in § 1205.13 of this part.

(d) Payment. Records usually will not be released until fees have been re-ceived.


§ 1205.12 Time limits and determina-tions.

(a) Board determinations. The Board will acknowledge the request for access to records and make a determination on whether to grant it within 20 work-days after it receives the request, ex-

cept under the unusual circumstances described below:

(1) When the Board needs to obtain the records from other Board offices or a Federal Records Center;

(2) When it needs to obtain and exam-ine a large number of records;

(3) When it needs to consult with an-other agency that has a substantial in-terest in the records requested; or

(4) When other extenuating cir-cumstances prevent the Board from processing the request within the 20- day period.

(b) Time extensions. When unusual cir-cumstances exist, the Board may ex-tend the time for making a determina-tion on the request for no more than 10 additional workdays. If it does so, it will notify the requester of the exten-sion.

(c) Improper request. If a request or an appeal is not properly labeled, does not contain the necessary identifying in-formation, or is submitted to the wrong office, the time period for proc-essing the request will begin when the correct official receives the properly labeled request and the necessary in-formation.

(d) Determining officials. The Clerk of the Board, a Regional Director, or a Chief Administrative Judge will make determinations on requests.

[64 FR 51043, Sept. 21, 1999; 64 FR 71267, Dec. 21, 1999]

§ 1205.13 Identification.

(a) In person. Each requester must present satisfactory proof of identity. The following items, which are listed in order of the Board’s preference, are acceptable proof of the requester’s identity when the request is made in person:

(1) A document showing the request-er’s photograph;

(2) A document showing the request-er’s signature; or

(3) If the items described in para-graphs (a)(1) and (2) of the section are not available, a signed statement in which the requester asserts his or her identity and acknowledges under-standing that misrepresentation of identity in order to obtain a record is a misdemeanor and subject to a fine of up to $5,000 under 5 U.S.C. 552a(i)(3).


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(b) By mail. The identification of a re-quester making a request by mail must be certified by a notary public or equivalent official or contain other in-formation to identify the requester. In-formation could be the date of birth of the requester and some item of infor-mation in the record that only the re-quester would be likely to know.

(c) Parents of minors, legal guardians, and representatives. Parents of minors, legal guardians, and representatives must submit identification under para-graph (a) or (b) of this section. Addi-tionally, they must present an authen-ticated copy of:

(1) The minor’s birth certificate, and (2) The court order of guardianship,

or (3) The agreement of representation,

where appropriate.

§ 1205.14 Granting access.

(a) The Board may allow a requester to inspect records through either of the following methods:

(1) It may permit the requester to in-spect the records personally during normal business hours at a Board office or other suitable Federal facility closer to the requester; or

(2) It may mail copies of the records to the requester.

(b) A requester seeking personal ac-cess to records may be accompanied by another individual of the requester’s choice. Under those circumstances, however, the requester must sign a statement authorizing the discussion and presentation of the record in the accompanying individuals presence.

§ 1205.15 Denying access.

(a) Basis. In accordance with 5 U.S.C. 552a(k)(2), the Board may deny access to records that are of an investigatory nature and that are compiled for law enforcement purposes. Those requests will be denied only where access to them would otherwise be unavailable under Exemption (b)(7) of the Freedom of Information Act.

(b) Form. All denials of access under this section will be made in writing and will notify the requester of the right to judicial review.

§ 1205.16 Fees.

(a) No fees will be charged except for making copies of records.

(b) Photocopies of records duplicated by the Board will be subject to a charge of 20 cents a page.

(c) If the fee to be assessed for any re-quest is less than $100 (the cost to the Board of processing and collecting the fee), no charge will be made to the re-quester.

(d) Fees for copying audio tapes and computer records will be charged at a rate representing the actual costs to the Board, as shown in paragraphs (d)(1) through (d)(3) of this section.

(1) Audio tapes will be provided at a charge not to exceed $15 for each cas-sette tape.

(2) Computer printouts will be pro-vided at a charge of 10 cents a page.

(3) Records reproduced on computer tapes, computer diskettes, or other electronic media, will be provided at the actual cost to the Board.

(e) The Board will provide one copy of the amended parts of any record it amends free of charge as evidence of the amendment.

Subpart C—Amendment of Records

§ 1205.21 Request for amendment.

A request for amendment of a record must be submitted to the Regional Di-rector or Chief Administrative Judge of the appropriate regional or field office, or to the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419–0001, depending on which office has custody of the record. The request must be in writing, must be identified conspicu-ously on the outside of the envelope and the letter as a ‘‘PRIVACY ACT RE-QUEST,’’ and must include the fol-lowing information:

(a) An identification of the record to be amended;

(b) A description of the amendment requested; and

(c) A statement of the basis for the amendment, along with supporting documentation, if any.



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§ 1205.22 Action on request. (a) Amendment granted. If the Board

grants the request for amendment, it will notify the requester and provide him or her with a copy of the amend-ment.

(b) Amendment denied. If the Board denies the request for amendment in whole or in part, it will provide the re-quester with a written notice that in-cludes the following information:

(1) The basis for the denial; and (2) The procedures for appealing the

denial.

§ 1205.23 Time limits. The Clerk of the Board, Regional Di-

rector, or Chief Administrative Judge will acknowledge a request for amend-ment within 10 workdays of receipt of the request in the appropriate office except under the unusual cir-cumstances described in paragraphs (a)(1) through (a)(4) of § 1205.12 of this part.

Subpart D—Appeals § 1205.31 Submitting appeal.

(a) A partial or complete denial, by the Clerk of the Board, by the Regional Director, or by the Chief Administra-tive Judge, of a request for amendment may be appealed to the Chairman, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419– 0001 within 10 workdays from the date of the denial.

(b) Any appeal must be in writing, must be clearly and conspicuously identified as a Privacy Act appeal on both the envelope and letter, and must include:

(1) A copy of the original request for amendment of the record;

(2) A copy of the denial; and (3) A statement of the reasons why

the original denial should be overruled.


§ 1205.32 Decision on appeal. (a) The Chairman will decide the ap-

peal within 30 workdays unless the Chairman determines that there is good cause for extension of that dead-line. If an appeal is improperly labeled, does not contain the necessary infor-

mation, or is submitted to an inappro-priate official, the time period for proc-essing that appeal will begin when the Chairman receives the appeal and the necessary information.

(b) If the request for amendment of a record is granted on appeal, the Chair-man will direct that the amendment be made. A copy of the amended record will be provided to the requester.

(c) If the request for amendment of a record is denied, the Chairman will no-tify the requester of the denial and will inform the requester of:

(1) The basis for the denial; (2) The right to judicial review of the

decision under 5 U.S.C. 552a(g)(1)(A); and

(3) The right to file a concise state-ment with the Board stating the rea-sons why the requester disagrees with the denial. This statement will become a part of the requester’s record.

PART 1206—OPEN MEETINGS

Subpart A—Purpose and Policy

Sec. 1206.1 Purpose. 1206.2 Policy. 1206.3 Definitions.

Subpart B—Procedures

1206.4 Notice of meeting. 1206.5 Change in meeting plans after notice. 1206.6 Decision to close meeting. 1206.7 Transcripts, recordings, or minutes of

open and closed meetings; public avail-ability; retention.

1206.8 Providing information to the public. 1206.9 Procedures for expedited closing of

meetings.

Subpart C—Conduct of Meetings

1206.11 Meeting place. 1206.12 Role of observers.

AUTHORITY: 5 U.S.C. 552b.

SOURCE: 54 FR 20367, May 11, 1989, unless otherwise noted.

Subpart A—Purpose and Policy

§ 1206.1 Purpose. The purpose of this part is to pre-

scribe the procedures by which the Board will conduct open meetings in accordance with the Government in the


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Sunshine Act (5 U.S.C. 552b) (‘‘the Act’’).

§ 1206.2 Policy. The Board will provide the public

with the fullest practicable informa-tion regarding its decision-making processes, while protecting individuals’ rights and the Board’s ability to carry out its responsibilities. Meetings at which the Board members jointly con-duct or dispose of official business are presumptively open to the public. The Board will close those meetings in whole or in part only in accordance with the exemptions provided under 5 U.S.C. 552b(c), and only when doing so is in the public interest.

§ 1206.3 Definitions. The following definitions apply to

this part: (a) Meeting means deliberations of at

least two Board members that deter-mine or result in the joint conduct of official Board business.

(b) Member means one of the members of the Merit Systems Protection Board.

Subpart B—Procedures § 1206.4 Notice of meeting.

(a) Notice of a Board meeting will be published in the FEDERAL REGISTER at least one week before the meeting. Each notice will include the following information:

(1) The time of the meeting; (2) The place where the meeting will

be held; (3) The subject and agenda of the

meeting; (4) Whether the meeting is to be open

to the public or closed; and (5) The name and telephone number

of a Board official responsible for re-ceiving inquiries regarding the meet-ing.

(b) The Board, by majority vote, may provide less than one week’s notice. When it does so, however, it will pro-vide notice of the meeting at the ear-liest practicable time.

§ 1206.5 Change in meeting plans after notice.

(a) After notice of a meeting has been published, the Board may change the time or place of the meeting only if it

announces the change publicly at the earliest practicable time.

(b) After notice of a meeting has been published, the Board may not change either the subject matter of the meet-ing or the decision that the meeting will be open to the public or closed un-less both of the following conditions are met:

(1) By majority, recorded vote, the Board members determine that Board business requires the change and that no earlier announcement of the change was possible; and

(2) Notice of the change, and of the individual Board members’ vote, is published in the FEDERAL REGISTER at the earliest practicable time.

§ 1206.6 Decision to close meeting. (a) Basis. The Board, by majority

vote, may decide to close a meeting in accordance with the provisions of 5 U.S.C. 552b(c)(1) to 552b(c)(10) when closing the meeting is in the public in-terest.

(b) General Counsel certification. For every meeting that is closed to the public in whole or in part, the General Counsel will certify that closing the meeting is proper, and will state the basis for that opinion.

(c) Vote. Within one day after voting to close a meeting, the Board will make publicly available a record re-flecting the vote of each member. In addition, within one day after any vote to close a portion or portions of a meeting to the public, the Board will make publicly available a full written explanation of its decision to close the meeting, together with a list naming all persons expected to attend the meeting and identifying their affili-ation, unless that disclosure would re-veal the information that the meeting was closed to protect.

§ 1206.7 Transcripts, recordings, or minutes of open and closed meet-ings; public availability; retention.

(a) Closed meetings. (1) For every meeting, or portion thereof, closed pur-suant to this part the presiding officer shall prepare a statement setting forth the time and place of the meeting and the persons present, which statement shall be retained by the Board. For each such meeting, or portion thereof,


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5 CFR Ch. II (1–1–16 Edition) § 1206.8

the Board shall maintain a copy of the General Counsel’s certification under § 1206.6(b) of this part, a statement from the presiding official specifying the time and place of the meeting and naming the persons present, a record (which may be part of the transcript) of all votes and all documents consid-ered at the meeting, and a complete transcript or electronic recording of the proceedings, except that for meet-ings or portions of meetings closed pur-suant to section (10) of 5 U.S.C. 552b(c), the Board may maintain either a tran-script, electronic recording, or a set of minutes. In lieu of a transcript or elec-tronic recording, a set of minutes shall fully and accurately summarize any ac-tion taken, the reasons therefore and views thereon, documents considered and the members’ vote on each roll call vote, if any.

(2) The Board shall make promptly available to the public copies of tran-scripts, recordings, or minutes main-tained as provided in accordance with this paragraph (a), except to the extent the items therein contain information which the Board determines may be withheld pursuant to the provisions of 5 U.S.C. 552b(c). Copies of transcripts or minutes, or transcriptions of electronic recordings including the identification of speakers, shall to the extent deter-mined to be publicly available, be fur-nished to any person, subject to the payment of duplication costs or the ac-tual cost of transcription.

(3) The Board shall maintain a com-plete verbatim copy of the transcript, a complete copy of the minutes, or a complete electronic recording of each meeting, or portion of a meeting, closed to the public, for a period of at least two (2) years after such meeting or until one (1) year after the conclu-sion of any Board proceeding with re-spect to which the meeting or portion was held whichever occurs later.

(b) Open meetings. Transcripts or other records will be made of all open meetings of the Board. Those records will be made available upon request at a fee representing the Board’s actual cost of making them available.

[76 FR 10755, Feb. 28, 2011]

§ 1206.8 Providing information to the public.

Information available to the public under this part will be made available by the Office of the Clerk of the Board, U.S. Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419. Individuals or organizations with a special interest in activities of the Board may ask the Office of the Clerk to have them placed on a mailing list for receipt of information available under this part.

[54 FR 20367, May 11, 1989, as amended at 65 FR 48886, Aug. 10, 2000]

§ 1206.9 Procedures for expedited clos-ing of meetings.

Instead of following the procedures described in §§ 1206.4 through 1206.8 of this part, and in §§ 1206.11 and 1206.12, the Board may expedite the closing of its meetings under the following condi-tions by using the following proce-dures:

(a) Finding. (1) Most regular Board business consists of reviewing initial decisions in cases adjudicated after an opportunity for a hearing has been pro-vided. Based on a review of this cir-cumstance, the legislative history of the Civil Service Reform Act of 1978 (Pub. L. 95–454), the Government in the Sunshine Act (5 U.S.C. 552b), and the Board’s regulations at 5 CFR part 1201, the Board finds that a majority of its meetings may properly be closed to the public under 5 U.S.C. 552b(c)(10) and 552b(d)(4).

(2) Absent a compelling public inter-est to the contrary, meetings or por-tions of meetings that can be expected to be closed under these procedures in-clude meetings held to consider the fol-lowing: Petitions for review or cases that have been or may be reopened under 5 CFR 1201.114 through 1201.117; proposals to take action against ad-ministrative law judges under 5 CFR 1201.131 through 1201.136; and actions brought by the Special Counsel under 5 CFR 1201.129.

(b) Announcement. The Board will an-nounce publicly, at the earliest prac-ticable time, the time, place, and sub-ject matter of meetings or portions of meetings that are closed under this provision.


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(c) Procedure for closing meetings under this section. At the beginning of a meet-ing or portion of a meeting that is to be closed under this section, the Board may, by recorded vote of two of its members, decide to close the meeting or a portion of it to public observation. The Board may take this action, how-ever, only after it receives a certifi-cation by the General Counsel under § 1206.6(b) of this part.

(d) Record Availability. When the Board has closed a meeting or portion of a meeting under this paragraph, it will make the following available as soon as practicable:

(1) A written record reflecting the vote of each participating member of the Board with respect to closing the meeting; and

(2) The General Counsel certification under § 1206.6(b).

Subpart C—Conduct of Meetings § 1206.11 Meeting place.

The Board will hold open meetings in meeting rooms designated in the public announcements of those meetings. Whenever the number of observers is greater than can be accommodated in the designated meeting room, however, it will make alternative facilities available to the extent possible.

§ 1206.12 Role of observers. The public may attend open meetings

for the sole purpose of observation. Ob-servers may not participate in the meetings unless they are expressly in-vited to do so. They also may not cre-ate distractions that interfere with the conduct and disposition of Board busi-ness, and they may be asked to leave if they do so. Observers of meetings that are partially closed must leave the meeting room when they are asked to do so.

PART 1207—ENFORCEMENT OF NONDISCRIMINATION ON THE BASIS OF DISABILITY IN PRO-GRAMS OR ACTIVITIES CON-DUCTED BY THE MERIT SYSTEMS PROTECTION BOARD

Sec. 1207.101 Purpose.

1207.102 Application. 1207.103 Definitions. 1207.104–1207.109 [Reserved] 1207.110 Notice. 1207.111–1207.119 [Reserved] 1207.120 General prohibitions against dis-

crimination. 1207.121–1207.129 [Reserved] 1207.130 Employment. 1207.131–1207.139 [Reserved] 1207.140 Program accessibility: Discrimina-

tion prohibited. 1207.141–1207.149 [Reserved] 1207.150 Program accessibility: Existing fa-

cilities. 1207.151 Program accessibility: New con-

struction and alterations. 1207.152–1207.159 [Reserved] 1207.160 Communications. 1207.161–1207.169 [Reserved] 1207.170 Compliance procedures. 1207.171–1207.999 [Reserved]

AUTHORITY: 29 U.S.C. 794.

SOURCE: 70 FR 24293, May 9, 2005, unless otherwise noted.

§ 1207.101 Purpose. The purpose of this part is to effec-

tuate section 119 of the Rehabilitation, Comprehensive Services, and Develop-mental Disabilities Amendments of 1978, which amended section 504 of the Rehabilitation Act of 1973 to prohibit discrimination on the basis of dis-ability in programs or activities con-ducted by Executive agencies or the United States Postal Service.

§ 1207.102 Application. This part applies to all programs or

activities conducted by the agency, ex-cept for programs or activities con-ducted outside the United States that do not involve individuals with disabil-ities in the United States.

§ 1207.103 Definitions. (a) Assistant Attorney General means

the Assistant Attorney General, Civil Rights Division, United States Depart-ment of Justice.

(b) Auxiliary aids means services or devices that enable persons with im-paired sensory, manual, or speaking skills to have an equal opportunity to participate in, and enjoy the benefits of, programs or activities conducted by the agency. For example, auxiliary aids useful for persons with impaired vision include readers, Brailled materials, audio recordings, and other similar


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5 CFR Ch. II (1–1–16 Edition) § 1207.103

services and devices. Auxiliary aids useful for persons with impaired hear-ing include telephone handset ampli-fiers, telephones compatible with hear-ing aids, telecommunication devices for deaf persons (TDDs), interpreters, notetakers, written materials, and other similar services and devices.

(c) Complete complaint means a writ-ten statement that contains the com-plainant’s name and address and de-scribes the agency’s alleged discrimi-natory action in sufficient detail to in-form the agency of the nature and date of the alleged violation of section 504. It shall be signed by the complainant or by someone authorized to do so on his or her behalf. Complaints filed on behalf of classes or third parties shall describe or identify (by name, if pos-sible) the alleged victims of discrimi-nation.

(d) Days means calendar days, unless otherwise stated.

(e) Facility means all or any portion of buildings, structures, equipment, roads, walks, parking lots, rolling stock or other conveyances, or other real or personal property.

(f) Historic preservation programs means programs conducted by the agency that have preservation of his-toric properties as a primary purpose.

(g) Historic properties means those properties that are listed or eligible for listing in the National Register of His-toric Places or properties designated as historic under a statute of the appro-priate State or local government body.

(h) Individual with a disability means any person who has a physical or men-tal impairment that substantially lim-its one or more major life activities, has a record of such an impairment, or is regarded as having such an impair-ment. The following phrases used in this definition are further defined as follows:

(1) Physical or mental impairment in-cludes—

(i) Any physiological disorder or con-dition, cosmetic disfigurement, or ana-tomical loss affecting one or more of the following body systems: Neuro-logical; musculoskeletal; special sense organs; respiratory, including speech organs; cardiovascular; reproductive; digestive; genitourinary; hemic and lymphatic; skin; and endocrine; or

(ii) Any mental or psychological dis-order, such as mental retardation, or-ganic brain syndrome, emotional or mental illness, and specific learning disabilities.

(iii) Also, physical and mental im-pairment includes, but is not limited to, such diseases and conditions as or-thopedic, visual, speech, and hearing impairments, cerebral palsy, epilepsy, muscular dystrophy, multiple sclerosis, cancer, heart disease, diabetes, mental retardation, emotional illness, and drug addiction and alcoholism.

(2) Major life activities include func-tions such as caring for one’s self, per-forming manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working.

(3) Has a record of such an impairment means has a history of, or has been misclassified as having, a mental or physical impairment that substantially limits one or more major life activi-ties.

(4) Is regarded as having an impairment means—

(i) Has a physical or mental impair-ment that does not substantially limit major life activities but is treated by the agency as constituting such a limi-tation;

(ii) Has a physical or mental impair-ment that substantially limits major life activities only as a result of the at-titudes of others toward such impair-ment; or

(iii) Has none of the impairments de-fined in paragraph (i) of this definition but is treated by the agency as having such an impairment.

(i) Qualified individual with a disability means—

(1) With respect to any agency pro-gram or activity under which a person is required to perform services or to achieve a level of accomplishment, an individual with a disability who meets the essential eligibility requirements and who can achieve the purpose of the program or activity without modifica-tions in the program or activity that the agency can demonstrate would re-sult in a fundamental alteration in its nature;

(2) With respect to any other pro-gram or activity, an individual with a disability who meets the essential eli-gibility requirements for participation


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in, or receipt of benefits from, that pro-gram or activity; and

(3) Qualified disabled person as that term is defined for purposes of employ-ment in 29 CFR 1614.203, which is made applicable to this part by § 1207.130.

(j) Section 504 means section 504 of the Rehabilitation Act of 1973 (Pub. L. 93– 112, 87 Stat. 394 (29 U.S.C. 794)), as amended by the Rehabilitation Act Amendments of 1974 (Pub. L. 93–516, 88 Stat. 1617); the Rehabilitation, Com-prehensive Services, and Develop-mental Disabilities Amendments of 1978 (Pub. L. 95–602, 92 Stat. 2955); and the Rehabilitation Act Amendments of 1986 (Pub. L. 99–506, 100 Stat. 1810). As used in this part, section 504 applies only to programs or activities con-ducted by Executive agencies and not to federally assisted programs.

§§ 1207.104–1207.109 [Reserved]

§ 1207.110 Notice. The agency shall make available to

employees, applicants, participants, and other interested parties such infor-mation regarding the provisions of this part and its applicability to the pro-grams or activities conducted by the agency, and make such information available to them in such manner as the head of the agency finds necessary to apprise such persons of the protec-tions against discrimination assured them by section 504 and this part.

§§ 1207.111–1207.119 [Reserved]

§ 1207.120 General prohibitions against discrimination.

(a) No qualified individual with a dis-ability shall, on the basis of such dis-ability, be excluded from participation in, be denied the benefits of, or other-wise be subjected to discrimination under any program or activity con-ducted by the agency.

(b)(1) The agency, in providing any aid, benefit, or service, may not, di-rectly or through contractual, licens-ing, or other arrangements, on the basis of disability—

(i) Deny a qualified individual with a disability the opportunity to partici-pate in or benefit from the aid, benefit, or service;

(ii) Afford a qualified individual with a disability an opportunity to partici-

pate in or benefit from the aid, benefit, or service that is not equal to that af-forded others;

(iii) Provide a qualified individual with a disability with an aid, benefit, or service that is not as effective in af-fording equal opportunity to obtain the same result, to gain the same benefit, or to reach the same level of achieve-ment as that provided to others;

(iv) Provide different or separate aid, benefits, or services to individuals with disabilities or to any class of individ-uals with disabilities than is provided to others unless such action is nec-essary to provide qualified individuals with disabilities with aid, benefits, or services that are as effective as those provided to others;

(v) Deny a qualified individual with a disability the opportunity to partici-pate as a member of planning or advi-sory boards;

(vi) Otherwise limit a qualified indi-vidual with a disability in the enjoy-ment of any right, privilege, advan-tage, or opportunity enjoyed by others receiving the aid, benefit, or service.

(2) A qualified individual with a dis-ability may not be excluded from par-ticipation in any of the agency’s pro-grams or activities, even though per-missibly separate or different programs or activities exist.

(3) The agency may not, directly or through contractual or other arrange-ments, utilize criteria or methods of administration the purpose or effect of which would—

(i) Subject qualified individuals with disabilities to discrimination on the basis of disability; or

(ii) Defeat or substantially impair ac-complishment of the objectives of a program or activity with respect to in-dividuals with disabilities.

(4) The agency may not, in deter-mining the site or location of a facil-ity, make selections the purpose or ef-fect of which would—

(i) Exclude individuals with disabil-ities from, deny them the benefits of, or otherwise subject them to discrimi-nation under any program or activity conducted by the agency, or;

(ii) Defeat or substantially impair the accomplishment of the objectives of a program or activity with respect to individuals with disabilities.


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5 CFR Ch. II (1–1–16 Edition) §§ 1207.121–1207.129

(5) The agency, in the selection of procurement contractors, may not use criteria that subject qualified individ-uals with disabilities to discrimination on the basis of disability.

(6) The agency may not administer a licensing or certification program in a manner that subjects qualified individ-uals with disabilities to discrimination on the basis of disability, nor may the agency establish requirements for the programs or activities of licensees or certified entities that subject qualified individuals with disabilities to dis-crimination on the basis of disability. However, the programs or activities of entities that are licensed or certified by the agency are not, themselves, cov-ered by this part.

(c) The exclusion of nondisabled per-sons from the benefits of a program limited by Federal statute or Execu-tive order to individuals with disabil-ities or the exclusion of a specific class of individuals with disabilities from a program limited by Federal statute or Executive order to a different class of individuals with disabilities is not pro-hibited by this part.

(d) The agency shall administer pro-grams and activities in the most inte-grated setting appropriate to the needs of qualified individuals with disabil-ities.

§§ 1207.121–1207.129 [Reserved]

§ 1207.130 Employment. No qualified individual with a dis-

ability shall, on the basis of such dis-ability, be subject to discrimination in employment under any program or ac-tivity conducted by the agency. The definitions, requirements, and proce-dures of section 501 of the Rehabilita-tion Act of 1973 (29 U.S.C. 791), as estab-lished by the Equal Employment Op-portunity Commission in 29 CFR part 1614, shall apply to employment in fed-erally conducted programs or activi-ties.

§§ 1207.131–1207.139 [Reserved]

§ 1207.140 Program accessibility: Dis-crimination prohibited.

Except as otherwise provided in § 1207.150, no qualified individual with disabilities shall, because the agency’s facilities are inaccessible to or unus-

able by individuals with disabilities, be denied the benefits of, be excluded from participation in, or otherwise be sub-jected to discrimination under any pro-gram or activity conducted by the agency.

§§ 1207.141–1207.149 [Reserved]

§ 1207.150 Program accessibility: Exist-ing facilities.

(a) General. The agency shall operate each program or activity so that the program or activity, when viewed in its entirety, is readily accessible to and usable by individuals with disabilities. This paragraph does not—

(1) Necessarily require the agency to make each of its existing facilities ac-cessible to and usable by individuals with disabilities;

(2) In the case of historic preserva-tion programs, require the agency to take any action that would result in a substantial impairment of significant historic features of an historic prop-erty; or

(3) Require the agency to take any action that it can demonstrate would result in a fundamental alteration in the nature of a program or activity or in undue financial and administrative burdens. In those circumstances where agency personnel believe that the pro-posed action would fundamentally alter the program or activity or would result in undue financial and adminis-trative burdens, the agency has the burden of proving that compliance with § 1207.150(a) would result in such alter-ation or burdens. The decision that compliance would result in such alter-ation or burdens must be made by the agency head or his or her designee after considering all agency resources available for use in the funding and op-eration of the conducted program or activity, and must be accompanied by a written statement of the reasons for reaching that conclusion. If an action would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alteration or such burdens but would nevertheless ensure that in-dividuals with disabilities receive the benefits and services of the program or activity.


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(b) Methods—(1) General. The agency may comply with the requirements of this section through such means as re-design of equipment, reassignment of services to accessible buildings, assign-ment of aides to beneficiaries, home visits, delivery of services at alternate accessible sites, alteration of existing facilities and construction of new fa-cilities, use of accessible rolling stock, or any other methods that result in making its programs or activities read-ily accessible to and usable by individ-uals with disabilities. The agency is not required to make structural changes in existing facilities where other methods are effective in achiev-ing compliance with this section. The agency, in making alterations to exist-ing buildings, shall meet accessibility requirements to the extent compelled by the Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151–4157), and any regulations implementing it. In choosing among available methods for meeting the requirements of this section, the agency shall give priority to those methods that offer programs and activities to qualified individuals with disabilities in the most integrated setting appropriate.

(2) Historic preservation programs. In meeting the requirements of § 1207.150(a) in historic preservation programs, the agency shall give pri-ority to methods that provide physical access to individuals with disabilities. In cases where a physical alteration to an historic property is not required be-cause of § 1207.150(a)(2) or (3), alter-native methods of achieving program accessibility include—

(i) Using audio-visual materials and devices to depict those portions of an historic property that cannot other-wise be made accessible;

(ii) Assigning persons to guide indi-viduals with disabilities into or through portions of historic properties that cannot otherwise be made acces-sible; or

(iii) Adopting other innovative meth-ods.

§ 1207.151 Program accessibility: New construction and alterations.

Each building or part of a building that is constructed or altered by, on behalf of, or for the use of the agency

shall be designed, constructed, or al-tered so as to be readily accessible to and usable by individuals with disabil-ities. The definitions, requirements, and standards of the Architectural Bar-riers Act (42 U.S.C. 4151–4157), as estab-lished in 41 CFR 101–19.600 to 101–19.607, apply to buildings covered by this sec-tion.

§§ 1207.152–1207.159 [Reserved]

§ 1207.160 Communications.

(a) The agency shall take appropriate steps to ensure effective communica-tion with applicants, participants, per-sonnel of other Federal entities, and members of the public.

(1) The agency shall furnish appro-priate auxiliary aids where necessary to afford an individual with a disability an equal opportunity to participate in, and enjoy the benefits of, a program or activity conducted by the agency.

(i) In determining what type of auxil-iary aid is necessary, the agency shall give primary consideration to the re-quests of the individual with a dis-ability.

(ii) The agency need not provide indi-vidually prescribed devices, readers for personal use or study, or other devices of a personal nature.

(2) Where the agency communicates with parties by telephone, tele-communication devices for deaf per-sons or equally effective telecommuni-cation systems shall be used to com-municate with persons with impaired hearing.

(b) The agency shall ensure that in-terested persons, including persons with impaired vision or hearing, can obtain information as to the existence and location of accessible services, ac-tivities, and facilities.

(c) The agency shall provide signage at a primary entrance to each of its in-accessible facilities, directing users to a location at which they can obtain in-formation about accessible facilities. The international symbol for accessi-bility shall be used at each primary en-trance of an accessible facility.

(d) This section does not require the agency to take any action that it can demonstrate would result in a funda-mental alteration in the nature of a


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5 CFR Ch. II (1–1–16 Edition) §§ 1207.161–1207.169

program or activity or in undue finan-cial and administrative burdens. In those circumstances where agency per-sonnel believe that the proposed action would fundamentally alter the program or activity or would result in undue fi-nancial and administrative burdens, the agency has the burden of proving that compliance with § 1207.160 would result in such alteration or burdens. The decision that compliance would re-sult in such alteration or burdens must be made by the agency head or his or her designee after considering all agen-cy resources available for use in the funding and operation of the conducted program or activity and must be ac-companied by a written statement of the reasons for reaching that conclu-sion. If an action required to comply with this section would result in such an alteration or such burdens, the agency shall take any other action that would not result in such an alter-ation or such burdens but would never-theless ensure that, to the maximum extent possible, individuals with dis-abilities receive the benefits and serv-ices of the program or activity.

§§ 1207.161–1207.169 [Reserved]

§ 1207.170 Compliance procedures. (a) The agency shall process com-

plaints alleging violations of section 504 with respect to employment accord-ing to the procedures established by the Equal Employment Opportunity Commission in 29 CFR part 1614 pursu-ant to section 501 of the Rehabilitation Act of 1973 (29 U.S.C. 791).

(b) Allegations of discrimination in the adjudication of a Board case. (1) When a party to a case pending before any of the Board’s judges believes he or she has been subjected to discrimination on the basis of disability in the adju-dication of the case, the party may raise the allegation in a pleading filed with the judge and served on all other parties in accordance with 5 CFR 1201.26(b)(2).

(2) An allegation of discrimination in the adjudication of a Board case must be raised within 10 days of the alleged act of discrimination or within 10 days from the date the complainant should reasonably have known of the alleged discrimination. If the complainant

does not submit a complaint within that time period, it will be dismissed as untimely filed unless a good reason for the delay is shown. The pleading must be clearly marked ‘‘5 CFR part 1207 al-legation of discrimination in the adju-dication of a Board case.’’

(3) The judge to whom the case is as-signed shall decide the merits of any timely allegation that is raised at this stage of adjudication, and shall make findings and conclusions regarding the allegation either in an interim order or in the initial decision, recommended decision, or recommendation. Any re-quest for reconsideration of the admin-istrative judge’s decision on the dis-ability discrimination claim must be filed in accordance with the require-ments of 5 CFR 1201.114 and 1201.115.

(4) If the judge to whom the case was assigned has issued the initial decision, recommended decision, or rec-ommendation by the time the party learns of the alleged discrimination, the party may raise the allegation in a petition for review, cross petition for review, or response to the petition or cross petition. The petition for review, cross petition for review or response to the petition or cross petition must be clearly marked ‘‘5 CFR part 1207 alle-gation of discrimination in the adju-dication of a Board case.’’

(5) The Board shall decide the merits of any timely allegation that is raised at this stage of adjudication in a final decision.

(c) All complaints of discrimination on the basis of disability in programs and activities conducted by the agency, except for those described in para-graphs (a) and (b) of this section, shall be filed under the procedures described in this paragraph.

(1) Who may file. Any person who be-lieves that he or she has been subjected to discrimination prohibited by this part, or authorized representative of such person, may file a complaint. Any person who believes that any specific class of persons has been subjected to discrimination prohibited by this part and who is a member of that class or the authorized representative of a member of that class may file a com-plaint. A charge on behalf of a person


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or member of a class of persons claim-ing to be aggrieved may be made by any person, agency or organization.

(2) Where and when to file. Complaints shall be filed with the Director, Office of Equal Employment Opportunity (EEO Director), Merit Systems Protec-tion Board, 1615 M Street, NW., Wash-ington DC 20419, or e-mailed to [email protected], within thir-ty-five (35) calendar days of the alleged act of discrimination. A complaint filed by personal delivery is considered filed on the date it is received by the EEO Director. The date of filing by fac-simile or e-mail is the date the fac-simile or e-mail is sent. The date of fil-ing by mail is determined by the post-mark date; if no legible postmark date appears on the mailing, the submission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commer-cial overnight delivery is the date the document was delivered to the com-mercial overnight delivery service. The agency shall extend the time period for filing a complaint upon a showing of good cause. For example, the agency shall extend this time limit if a com-plainant shows that he or she was pre-vented by circumstances beyond his or her control from submitting the mat-ter within the time limits.

(3) Acceptance of complaint. (i) The agency shall accept a complete com-plaint that is filed in accordance with paragraph (c) of this section and over which it has jurisdiction. The EEO Di-rector shall notify the complainant of receipt and acceptance of the com-plaint.

(ii) If the EEO Director receives a complaint that is not complete, he or she shall notify the complainant that additional information is needed. If the complainant fails to complete the com-plaint and return it to the EEO Direc-tor within 15 days of his or her receipt of the request for additional informa-tion, the EEO Director shall dismiss the complaint with prejudice and shall so inform the complainant.

(4) Within 60 days of the receipt of a complete complaint for which it has ju-risdiction, the EEO Director shall no-tify the complainant of the results of

the investigation in an initial decision containing—

(i) Findings of fact and conclusions of law;

(ii) When applicable, a description of a remedy for each violation found; and

(iii) A notice of the right to appeal. (5) Any appeal of the EEO Director’s

initial decision must be filed with the Chairman of the Board, Merit Systems Protection Board, 1615 M Street, NW., Washington, DC 20419 by the complain-ant within 35 days of the date the EEO Director issues the decision required by § 1207.170(c)(4). The agency may extend this time for good cause when a com-plainant shows that circumstances be-yond his or her control prevented the filing of an appeal within the pre-scribed time limit. An appeal filed by personal delivery is considered filed on the date it is received by the Chair-man. The date of filing by facsimile is the date of the facsimile. The date of filing by mail is determined by the postmark date; if no legible postmark date appears on the mailing, the sub-mission is presumed to have been mailed five days (excluding days on which the Board is closed for business) before its receipt. The date of filing by commercial overnight delivery is the date the document was delivered to the commercial overnight delivery service. The appeal should be clearly marked ‘‘Appeal of Section 504 Decision’’ and must contain specific objections ex-plaining why the person believes the initial decision was factually or legally wrong. A copy of the initial decision being appealed should be attached to the appeal letter.

(6) A timely appeal shall be decided by the Chairman unless the Chairman determines, in his or her discretion, that the appeal raises policy issues and that the nature of those policy issues warrants a decision by the full Board. The full Board shall then decide such appeals.

(7) The Chairman shall notify the complainant of the results of the ap-peal within sixty (60) days of the re-ceipt of the request. If the Chairman determines that he or she needs addi-tional information from the complain-ant, he or she shall have sixty (60) days


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5 CFR Ch. II (1–1–16 Edition) §§ 1207.171–1207.999

from the date he or she receives the ad-ditional information to make his or her determination on the appeal.

(8) The time limit stated in para-graph (c)(2) may be extended by the EEO Director to a period of up to 180 days, and may be extended further with the permission of the Assistant Attor-ney General. The time limit stated in paragraph (c)(5) may be extended by the Chairman to a period of up to 180 days, and may be extended further with the permission of the Assistant Attor-ney General.

(9) The agency may delegate its au-thority for conducting complaint in-vestigations to other Federal agencies, except that the authority for making the final determination may not be delegated to another agency.

(d) The agency shall notify the Archi-tectural and Transportation Barriers Compliance Board upon receipt of any complaint alleging that a building or facility that is subject to the Architec-tural Barriers Act of 1968, as amended (42 U.S.C. 4151–4157), is not readily ac-cessible to and usable by individuals with disabilities.

(e) If the agency receives a complaint over which it does not have jurisdic-tion, it shall promptly notify the com-plainant and shall make reasonable ef-forts to refer the complaint to the ap-propriate entity.

[70 FR 24293, May 9, 2005, as amended at 73 FR 6834, Feb. 6, 2008]

§§ 1207.171–1207.999 [Reserved]

PART 1208—PRACTICES AND PRO-CEDURES FOR APPEALS UNDER THE UNIFORMED SERVICES EM-PLOYMENT AND REEMPLOYMENT RIGHTS ACT AND THE VETERANS EMPLOYMENT OPPORTUNITIES ACT


Sec. 1208.1 Scope. 1208.2 Jurisdiction. 1208.3 Application of 5 CFR part 1201. 1208.4 Definitions.

Subpart B—USERRA Appeals

1208.11 Choice of procedure under USERRA; exhaustion requirement.

1208.12 Time of filing. 1208.13 Content of appeal; request for hear-

ing. 1208.14 Representation by Special Counsel. 1208.15 Remedies. 1208.16 Appeals under another law, rule, or

regulation.

Subpart C—VEOA Appeals

1208.21 VEOA exhaustion requirement. 1208.22 Time of filing. 1208.23 Content of appeal; request for hear-

ing. 1208.24 Election to terminate MSPB pro-

ceeding. 1208.25 Remedies. 1208.26 Appeals under another law, rule, or

regulation.

AUTHORITY: 5 U.S.C. 1204(h), 3330a, 3330b; 38 U.S.C. 4331.

SOURCE: 65 FR 5412, Feb. 4, 2000, unless oth-erwise noted.


§ 1208.1 Scope. This part governs appeals filed with

the Board under the provisions of 38 U.S.C. 4324, as enacted by the Uni-formed Services Employment and Re-employment Rights Act of 1994 (USERRA), Public Law 103–353, as amended, or under the provisions of 5 U.S.C. 3330a, as enacted by the Vet-erans Employment Opportunities Act of 1998 (VEOA), Public Law 105–339. With respect to USERRA appeals, this part applies to any appeal filed with the Board on or after October 13, 1994, without regard as to whether the al-leged violation occurred before, on, or after October 13, 1994. With respect to VEOA appeals, this part applies to any appeal filed with the Board which al-leges that a violation occurred on or after October 31, 1998.

§ 1208.2 Jurisdiction. (a) USERRA. Under 38 U.S.C. 4324, a

person entitled to the rights and bene-fits provided by chapter 43 of title 38, United States Code, may file an appeal with the Board alleging that a Federal agency employer or the Office of Per-sonnel Management has failed or re-fused, or is about to fail or refuse, to comply with a provision of that chap-ter (other than a provision relating to benefits under the Thrift Savings Plan


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for Federal employees). In general, the provisions of chapter 43 of title 38 that apply to Federal employees guarantee various reemployment rights following a period of service in a uniformed serv-ice, provided the employee satisfies the requirements for coverage under that chapter. In addition, chapter 43 of title 38 prohibits discrimination based on a person’s service—or application or obli-gation for service—in a uniformed serv-ice (38 U.S.C. 4311). This prohibition ap-plies with respect to initial employ-ment, reemployment, retention in em-ployment, promotion, or any benefit of employment.

(b) VEOA. Under 5 U.S.C. 3330a, a preference eligible who alleges that a Federal agency has violated his rights under any statute or regulation relat-ing to veterans’ preference may file an appeal with the Board, provided that he has satisfied the statutory require-ments for first filing a complaint with the Secretary of Labor and allowing the Secretary at least 60 days to at-tempt to resolve the complaint.

§ 1208.3 Application of 5 CFR part 1201.

Except as expressly provided in this part, the Board will apply subparts A (Jurisdiction and Definitions), B (Pro-cedures for Appellate Cases), C (Peti-tions for Review of Initial Decisions), and F (Enforcement of Final Decisions and Orders) of 5 CFR part 1201 to ap-peals governed by this part. The Board will apply the provisions of subpart H (Attorney Fees (Plus Costs, Expert Witness Fees, and Litigation Expenses, Where Applicable) and Damages (Con-sequential, Liquidated, and Compen-satory)) of 5 CFR part 1201 regarding awards of attorney fees and liquidated damages to appeals governed by this part.

[77 FR 62373, Oct. 12, 2012]


(a) Appeal. ‘‘Appeal’’ means a request for review of an agency action (the same meaning as in 5 CFR § 1201.4(f)) and includes a ‘‘complaint’’ or ‘‘ac-tion’’ as those terms are used in USERRA (38 U.S.C. 4324) and a ‘‘com-plaint’’ or ‘‘appeal’’ as those terms are used in VEOA (5 U.S.C. 3330a).

(b) Preference eligible. ‘‘Preference eli-gible’’ is defined in 5 U.S.C. 2108.

(c) USERRA appeal. ‘‘USERRA ap-peal’’ means an appeal filed under 38 U.S.C. 4324, as enacted by the Uni-formed Services Employment and Re-employment Rights Act of 1994 (Public Law 103–353), as amended. The term in-cludes an appeal that alleges a viola-tion of a predecessor statutory provi-sion of chapter 43 of title 38, United States Code.

(d) VEOA appeal. ‘‘VEOA appeal’’ means an appeal filed under 5 U.S.C. 3330a, as enacted by the Veterans Em-ployment Opportunities Act of 1998 (Public Law 105–339).

Subpart B—USERRA Appeals

§ 1208.11 Choice of procedure under USERRA; exhaustion requirement.

(a) Choice of procedure. An appellant may file a USERRA appeal directly with the Board under this subpart or may file a complaint with the Sec-retary of Labor under 38 U.S.C. 4322.

(b) Exhaustion requirement. If an ap-pellant files a complaint with the Sec-retary of Labor under 38 U.S.C. 4322, the appellant may not file a USERRA appeal with the Board until the Sec-retary notifies the appellant in accord-ance with 38 U.S.C. 4322(e) that the Secretary’s efforts have not resolved the complaint. An appellant who seeks assistance from the Secretary of Labor under 38 U.S.C. 4321 but does not file a complaint with the Secretary under 38 U.S.C. 4322 is not subject to the exhaus-tion requirement of this paragraph.

(c) Appeals after exhaustion of Depart-ment of Labor procedure. When an appel-lant receives notice from the Secretary of Labor in accordance with 38 U.S.C. 4322(e) that the Secretary’s efforts have not resolved the complaint, the appel-lant may file a USERRA appeal di-rectly with the Board or may ask the Secretary to refer the complaint to the Special Counsel. If the Special Counsel agrees to represent the appellant, the Special Counsel may file a USERRA appeal directly with the Board. If the Special Counsel does not agree to rep-resent the appellant, the appellant may


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5 CFR Ch. II (1–1–16 Edition) § 1208.12

file a USERRA appeal directly with the Board.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]

§ 1208.12 Time of filing. Under chapter 43 of title 38, United

States Code, there is no time limit for filing a USERRA appeal with the Board. However, the Board encourages appellants to file a USERRA appeal as soon as possible after the date of the alleged violation or, if a complaint is filed with the Secretary of Labor, as soon as possible after receiving notice from the Secretary in accordance with 38 U.S.C. 4322(e) that the Secretary’s efforts have not resolved the com-plaint, or, if the Secretary has referred the complaint to the Special Counsel and the Special Counsel does not agree to represent the appellant, as soon as possible after receiving the Special Counsel’s notice.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000]

§ 1208.13 Content of appeal; request for hearing.

(a) Content. A USERRA appeal may be in any format, including letter form, but must contain the following:

(1) The nine (9) items or types of in-formation required in 5 CFR 1201.24(a)(1) through (a)(9);

(2) Evidence or argument that the ap-pellant has performed service in a uni-formed service, including the dates of such service (or, where applicable, has applied for or has an obligation to per-form such service), and that the appel-lant otherwise satisfies the require-ments for coverage under chapter 43 of title 38, United States Code;

(3) A statement describing in detail the basis for the appeal, that is, the protected right or benefit that was al-legedly denied, including reference to the provision(s) of chapter 43 of title 38, United States Code, allegedly violated if possible.

(4) If the appellant filed a complaint with the Secretary of Labor under 38 U.S.C. 4322(a), evidence of notice under 38 U.S.C. 4322(e) that the Secretary’s efforts have not resolved the complaint (a copy of the Secretary’s notice satis-fies this requirement); and

(5) If the appellant’s complaint was referred to the Special Counsel and the appellant has received notice that the Special Counsel will not represent the appellant before the Board, evidence of the Special Counsel’s notice (a copy of the Special Counsel’s notice satisfies this requirement).

(b) Request for hearing. An appellant must submit any request for a hearing with the USERRA appeal, or within any other time period the judge sets. A hearing may be provided to the appel-lant once the Board’s jurisdiction over the appeal is established. The judge may also order a hearing if necessary to resolve issues of jurisdiction. The appellant has the burden of proof with respect to issues of jurisdiction (5 CFR 1201.56(a)(2)(i)).

(c) Electronic filing. An appeal may be filed electronically by using the Board’s e-Appeal site (https://e-ap-peal.mspb.gov) in accordance with § 1201.14 of this chapter.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000; 68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]

§ 1208.14 Representation by Special Counsel.

The Special Counsel may represent an appellant in a USERRA appeal be-fore the Board. A written statement (in any format) that the appellant sub-mitted a written request to the Sec-retary of Labor that the appellant’s complaint under 38 U.S.C. 4322(a) be re-ferred to the Special Counsel for litiga-tion before the Board, and that the Special Counsel has agreed to represent the appellant, will be accepted as the written designation of representative required by 5 CFR 1201.31(a). The des-ignation of representative may be filed by electronic filing, provided the re-quirements of § 1201.14 of this chapter are satisfied.

[69 FR 57631, Sept. 27, 2004]

§ 1208.15 Remedies. (a) Order for compliance. If the Board

determines that a Federal agency em-ployer or the Office of Personnel

Management has not complied with a provision or provisions of chapter 43 of title 38, United States Code (other than a provision relating to benefits under


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the Thrift Savings Plan for Federal employees), the decision of the Board (either an initial decision of a judge under 5 CFR 1201.111 or a final Board decision under 5 CFR 1201.117) will order the Federal agency employer or the Office of Personnel Management, as applicable, to comply with such pro-vision(s) and to compensate the appel-lant for any loss of wages or benefits suffered by the appellant because of such lack of compliance. Under 38 U.S.C. 4324(c)(3), any compensation re-ceived by the appellant pursuant to the Board’s order shall be in addition to any other right or benefit provided for by chapter 43 of title 38, United States Code, and shall not diminish any such right or benefit.

(b) Attorney fees and expenses. If the Board issues a decision ordering com-pliance under paragraph (a) of this sec-tion, the Board has discretion to order payment of reasonable attorney fees, expert witness fees, and other litiga-tion expenses under 38 U.S.C. 4324(c)(4). The provisions of subpart H of part 1201 shall govern any proceeding for attor-ney fees and expenses.

§ 1208.16 Appeals under another law, rule, or regulation.

Nothing in USERRA prevents an ap-pellant who may appeal an agency ac-tion to the Board under any other law, rule, or regulation from raising a claim of a USERRA violation in that appeal. The Board will treat such a claim as an affirmative defense that the agency ac-tion was not in accordance with law (5 CFR 1201.56(b)(3)).

Subpart C—VEOA Appeals § 1208.21 VEOA exhaustion require-

ment. (a) General rule. Before an appellant

may file a VEOA appeal with the Board, the appellant must first file a complaint under 5 U.S.C. 3330a(a) with the Secretary of Labor within 60 days after the date of the alleged violation. In addition, either the Secretary must have sent the appellant written notifi-cation that efforts to resolve the com-plaint were unsuccessful or, if the Sec-retary has not issued such notification and at least 60 days have elapsed from the date the complaint was filed, the

appellant must have provided written notification to the Secretary of the ap-pellant’s intention to file an appeal with the Board.

(b) Equitable tolling; extension of filing deadline. In extraordinary cir-cumstances, the appellant’s 60-day deadline for filing a complaint with the Secretary is subject to the doctrine of equitable tolling, which permits the Board to extend the deadline where the appellant, despite having diligently pursued his or her rights, was unable to make a timely filing. Examples include cases involving deception or in which the appellant filed a defective pleading during the statutory period.

[77 FR 62373, Oct. 12, 2012]

§ 1208.22 Time of filing.

(a) Unless the Secretary of Labor has notified the appellant that the Sec-retary’s efforts have not resolved the VEOA complaint, a VEOA appeal may not be filed with the Board before the 61st day after the date on which the ap-pellant filed the complaint under 5 U.S.C. 3330a(a) with the Secretary.

(b) If the Secretary of Labor notifies the appellant that the Secretary’s ef-forts have not resolved the VEOA com-plaint and the appellant elects to ap-peal to the Board under 5 U.S.C. 3330a(d), the appellant must file the VEOA appeal with the Board within 15 days after the date of receipt of the Secretary’s notice. A copy of the Sec-retary’s notice must be submitted with the appeal.

(c) Equitable tolling; extension of filing deadline. In extraordinary cir-cumstances, the appellant’s 15-day deadline for filing an appeal with the MSPB is subject to the doctrine of eq-uitable tolling, which permits the Board to extend the deadline where the appellant, despite having diligently pursued his or her rights, was unable to make a timely filing. Examples include cases involving deception or in which the appellant filed a defective pleading during the statutory period.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000; 77 FR 62373, Oct. 12, 2012; 78 FR 23458, Apr. 19, 2013]


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5 CFR Ch. II (1–1–16 Edition) § 1208.23

§ 1208.23 Content of appeal; request for hearing.

(a) Content. A VEOA appeal may be in any format, including letter form, but must contain the following:

(1) The nine (9) items or types of in-formation required in 5 CFR 1201.24(a)(1) through (a)(9);

(2) Evidence or argument that the ap-pellant is a preference eligible;

(3) A statement identifying the stat-ute or regulation relating to veterans’ preference that was allegedly violated, an explanation of how the provision was violated, and the date of the viola-tion;

(4) Evidence that a complaint under 5 U.S.C. 3330a(a) was filed with the Sec-retary of Labor, including the date the complaint was filed; and

(5) Evidence identifying the specific veterans’ preference claims that the appellant raised before the Secretary; and

(b) Request for hearing. An appellant must submit any request for a hearing with the VEOA appeal, or within any other time period the judge sets. A hearing may be provided to the appel-lant once the Board’s jurisdiction over the appeal is established and it has been determined that the appeal is timely. The judge may also order a hearing if necessary to resolve issues of jurisdiction or timeliness. The appel-lant has the burden of proof with re-spect to issues of jurisdiction and time-liness (5 CFR 1201.56(a)(2)(i) and (ii)).

(c) Electronic filing. An appeal may be filed electronically by using the Board’s e-Appeal site (https://e-ap-peal.mspb.gov) in accordance with § 1201.14 of this chapter.

[65 FR 5412, Feb. 4, 2000, as amended at 65 FR 49896, Aug. 16, 2000; 68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004; 77 FR 62373, Oct. 12, 2012]

EDITORIAL NOTE: At 77 FR 62373, Oct. 12, 2012, § 1208.23 was amended by revising para-graph (a)(6); however, the amendatory in-struction could not be followed because the paragraph could not be found in the section.

§ 1208.24 Election to terminate MSPB proceeding.

(a) Election to terminate. At any time beginning on the 121st day after an ap-pellant files a VEOA appeal with the Board, if a judicially reviewable Board

decision on the appeal has not been issued, the appellant may elect to ter-minate the Board proceeding as pro-vided under 5 U.S.C. 3330b and file a civil action with an appropriate United States district court. Such election must be in writing, signed, filed with the Board office where the appeal is being processed, and served on the par-ties. The election is effective imme-diately on the date of receipt by the Board office where the appeal is being processed. The election may be filed by electronic filing, provided the require-ments of § 1201.14 of this chapter are satisfied.

(b) Termination order. Following re-ceipt by the Board of an appellant’s written election to terminate the Board proceeding, a termination order will be issued to document the termi-nation of the proceeding. The termi-nation order will state that the pro-ceeding was terminated as of the date of receipt of the appellant’s written election. Such an order is neither an initial decision under 5 CFR 1201.111 nor a final Board decision and is not subject to a petition for review in ac-cordance with subpart C of part 1201, a petition for enforcement in accordance with subpart F of part 1201, or a peti-tion for judicial review.

[65 FR 5412, Feb. 4, 2000, as amended at 68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]

§ 1208.25 Remedies. (a) Order for compliance. If the Board

determines that a Federal agency has violated the appellant’s VEOA rights, the decision of the Board (either an ini-tial decision of a judge under 5 CFR 1201.111 or a final Board decision under 5 CFR 1201.117) will order the agency to comply with the statute or regulation violated and to compensate the appel-lant for any loss of wages or benefits suffered by the appellant because of the violation. If the Board determines that the violation was willful, it will order the agency to pay the appellant an amount equal to back pay as liquidated damages.

(b) Attorney fees and expenses. If the Board issues a decision ordering com-pliance under paragraph (a) of this sec-tion, the Board will order payment of reasonable attorney fees, expert wit-ness fees, and other litigation expenses.


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The provisions of subpart H of part 1201 shall govern any proceeding for attor-ney fees and expenses.

§ 1208.26 Appeals under another law, rule, or regulation.

(a) The VEOA provides that 5 U.S.C. 3330a shall not be construed to prohibit a preference eligible from appealing di-rectly to the Board from any action that is appealable under any other law, rule, or regulation, in lieu of adminis-trative redress under VEOA (5 U.S.C. 3330a(e)(1)). An appellant may not pur-sue redress for an alleged violation of veterans’ preference under VEOA at the same time he pursues redress for such violation under any other law, rule, or regulation (5 U.S.C. 3330a(e)(2)).

(b) An appellant who elects to appeal to the Board under another law, rule, or regulation must comply with the provisions of subparts B and C of 5 CFR part 1201, including the time of filing requirement of 5 CFR 1201.22(b)(1).

PART 1209—PRACTICES AND PRO-CEDURES FOR APPEALS AND STAY REQUESTS OF PERSONNEL ACTIONS ALLEGEDLY BASED ON WHISTLEBLOWING OR OTHER PROTECTED ACTIVITY


Sec. 1209.1 Scope. 1209.2 Jurisdiction. 1209.3 Application of 5 CFR part 1201. 1209.4 Definitions.

Subpart B—Appeals

1209.5 Time of filing. 1209.6 Content of appeal; right to hearing. 1209.7 Burden and degree of proof.

Subpart C—Stay Requests

1209.8 Filing a request for a stay. 1209.9 Content of stay request and response. 1209.10 Hearing and order ruling on stay re-

quest. 1209.11 Duration of stay; interim compli-

ance.

Subpart D—Reports on Applications for Transfers

1209.12 Filing of agency reports.

Subpart E—Referrals to the Special Counsel

1209.13 Referral of findings to the Special Counsel.

AUTHORITY: 5 U.S.C. 1204, 1221, 2302(b)(8) and (b)(9)(A)(i), (B), (C), or (D), and 7701.

SOURCE: 55 FR 28592, July 12, 1990, unless otherwise noted.


§ 1209.1 Scope.

This part governs any appeal or stay request filed with the Board by an em-ployee, former employee, or applicant for employment where the appellant alleges that a personnel action defined in 5 U.S.C. 2302(a)(2) was threatened, proposed, taken, or not taken because of the appellant’s whistleblowing or other protected activity activities. In-cluded are individual right of action appeals authorized by 5 U.S.C. 1221(a), appeals of otherwise appealable actions allegedly based on the appellant’s whis-tleblowing or other protected activity, and requests for stays of personnel ac-tions allegedly based on whistleblowing or other protected activity.

[78 FR 39546, July 2, 2013]

§ 1209.2 Jurisdiction.

(a) Generally. Under 5 U.S.C. 1221(a), an employee, former employee, or ap-plicant for employment may appeal to the Board from agency personnel ac-tions alleged to have been threatened, proposed, taken, or not taken because of the appellant’s whistleblowing or other protected activity.

(b) Appeals authorized. The Board ex-ercises jurisdiction over:

(1) Individual right of action (IRA) ap-peals. These are authorized by 5 U.S.C. 1221(a) with respect to personnel ac-tions listed in 1209.4(a) of this part that are allegedly threatened, proposed, taken, or not taken because of the ap-pellant’s whistleblowing or other pro-tected activity. If the action is not oth-erwise directly appealable to the Board, the appellant must seek correc-tive action from the Special Counsel before appealing to the Board.


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5 CFR Ch. II (1–1–16 Edition) § 1209.2

Example 1: An agency gives Employee X a performance evaluation under 5 U.S.C. chap-ter 43 that rates him as ‘‘minimally satisfac-tory.’’ Employee X believes that the agency has rated him ‘‘minimally satisfactory’’ be-cause he reported that his supervisor embez-zled public funds in violation of Federal law and regulation. Because a performance eval-uation is not an otherwise appealable action, Employee X must seek corrective action from the Special Counsel before appealing to the Board or before seeking a stay of the evaluation. If Employee X appeals the eval-uation to the Board after the Special Coun-sel proceeding is terminated or exhausted, his appeal is an IRA appeal.

Example 2: As above, an agency gives Em-ployee X a performance evaluation under 5 U.S.C. chapter 43 that rates him as ‘‘mini-mally satisfactory.’’ Employee X believes that the agency has rated him ‘‘minimally satisfactory’’ because he previously filed a Board appeal of the agency’s action sus-pending him without pay for 15 days. Wheth-er the Board would have jurisdiction to re-view Employee X’s performance rating as an IRA appeal depends on whether his previous Board appeal involved a claim of retaliation for whistleblowing. If it did, the Board could review the performance evaluation in an IRA appeal because the employee has alleged a violation of 5 U.S.C. 2302(b)(9)(A)(i). If the previous appeal did not involve a claim of re-taliation for whistleblowing, there might be a prohibited personnel practice under sub-section (b)(9)(A)(ii), but Employee X could not establish jurisdiction over an IRA ap-peal. Similarly, if Employee X believed that the current performance appraisal was retal-iation for his previous protected equal em-ployment opportunity (EEO) activity, there might be a prohibited personnel practice under subsection (b)(9)(A)(ii), but Employee X could not establish jurisdiction over an IRA appeal.

Example 3: As above, an agency gives Em-ployee X a performance evaluation under 5 U.S.C. chapter 43 that rates him as ‘‘mini-mally satisfactory.’’ Employee X believes that the agency has rated him ‘‘minimally satisfactory’’ because he testified on behalf of a co-worker in an EEO proceeding. The Board would have jurisdiction over the per-formance evaluation in an IRA appeal be-cause the appellant has alleged a violation of 5 U.S.C. 2302(b)(9)(B).

Example 4: Citing alleged misconduct, an agency proposes Employee Y’s removal. While that removal action is pending, Em-ployee Y files a complaint with OSC alleging that the proposed removal was initiated in retaliation for her having disclosed that an agency official embezzled public funds in vio-lation of Federal law and regulation. OSC subsequently issues a letter notifying Em-ployee Y that it has terminated its inves-tigation of the alleged retaliation with re-

spect to the proposed removal. Employee Y may file an IRA appeal with respect to the proposed removal.

(2) Otherwise appealable action ap-peals. These are appeals to the Board under laws, rules, or regulations other than 5 U.S.C. 1221(a) that include an al-legation that the action was based on the appellant’s whistleblowing or other protected activity. Otherwise appeal-able actions are listed in 5 CFR 1201.3(a). An individual who has been subjected to an otherwise appealable action must make an election of rem-edies as described in 5 U.S.C. 7121(g) and paragraphs (c) and (d) of this sec-tion.

Example 5: Same as Example 4 above. While the OSC complaint with respect to the pro-posed removal is pending, the agency effects the removal action. OSC subsequently issues a letter notifying Employee Y that it has terminated its investigation of the alleged retaliation with respect to the proposed re-moval. With respect to the effected removal, Employee Y can elect to appeal that action directly to the Board or to proceed with a complaint to OSC. If she chooses the latter option, she may file an IRA appeal when OSC has terminated its investigation, but the only issue that will be adjudicated in that appeal is whether she proves that her pro-tected disclosure was a contributing factor in the removal action and, if so, whether the agency can prove by clear and convincing evidence that it would have removed Em-ployee Y in the absence of the protected dis-closure. If she instead files a direct appeal, the agency must prove its misconduct charges, nexus, and the reasonableness of the penalty, and Employee Y can raise any af-firmative defenses she might have.

(c) Issues before the Board in IRA ap-peals. In an individual right of action appeal, the only merits issues before the Board are those listed in 5 U.S.C. 1221(e), i.e., whether the appellant has demonstrated that whistleblowing or other protected activity was a contrib-uting factor in one or more covered personnel actions and, if so, whether the agency has demonstrated by clear and convincing evidence that it would have taken the same personnel ac-tion(s) in the absence of the whistle-blowing or other protected activity. The appellant may not raise affirma-tive defenses, such as claims of dis-crimination or harmful procedural error. In an IRA appeal that concerns an adverse action under 5 U.S.C. 7512,


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the agency need not prove its charges, nexus, or the reasonableness of the penalty, as a requirement under 5 U.S.C. 7513(a), i.e., that its action is taken ‘‘only for such cause as will pro-mote the efficiency of the service.’’ However, the Board may consider the strength of the agency’s evidence in support of its adverse action in deter-mining whether the agency has dem-onstrated by clear and convincing evi-dence that it would have taken the same personnel action in the absence of the whistleblowing or other protected activity.

(d) Elections under 5 U.S.C. 7121(g). (1) Under 5 U.S.C. 7121(g)(3), an employee who believes he or she was subjected to a covered personnel action in retalia-tion for whistleblowing or other pro-tected activity ‘‘may elect not more than one’’ of 3 remedies: An appeal to the Board under 5 U.S.C. 7701; a nego-tiated grievance under 5 U.S.C. 7121(d); or corrective action under subchapters II and III of 5 U.S.C. chapter 12, i.e., a complaint filed with the Special Coun-sel (5 U.S.C. 1214), which can be fol-lowed by an IRA appeal filed with the Board (5 U.S.C. 1221). Under 5 U.S.C. 7121(g)(4), an election is deemed to have been made based on which of the 3 ac-tions the individual files first.

(2) In the case of an otherwise appeal-able action as described in paragraph (b)(2) of this section, an employee who files a complaint with OSC prior to fil-ing an appeal with the Board has elect-ed corrective action under subchapters II and III of 5 U.S.C. chapter 12, i.e., a complaint filed with OSC, which can be followed by an IRA appeal with the Board. As described in paragraph (c) of this section, the IRA appeal in such a case is limited to resolving the claim(s) of reprisal for whistleblowing or other protected activity.

(e) Elements and Order of Proof. Once jurisdiction has been established, the merits of a claim of retaliation for whistleblowing or other protected ac-tivity will be adjudicated as follows:

(1) The appellant must establish by preponderant evidence that he or she engaged in whistleblowing or other protected activity and that his or her whistleblowing or other protected ac-tivity was a contributing factor in a covered personnel action. An appellant

may establish the contributing factor element through circumstantial evi-dence, such as evidence that the offi-cial taking the personnel action knew of the disclosure or protected activity, and that the personnel action occurred within a period of time such that a rea-sonable person could conclude that the disclosure or protected activity was a contributing factor in the personnel ac-tion.

(2) If a finding has been made that a protected disclosure or other protected activity was a contributing factor in one or more covered personnel actions, the Board will order corrective action unless the agency demonstrates by clear and convincing evidence that it would have taken the same personnel action in the absence of such disclosure or activity.

[78 FR 39546, July 2, 2013]

§ 1209.3 Application of 5 CFR part 1201.

Except as expressly provided in this part, the Board will apply subparts A, B, C, E, F, and G of 5 CFR part 1201 to appeals and stay requests governed by this part. The Board will apply the pro-visions of subpart H of part 1201 regard-ing awards of attorney fees, compen-satory damages, and consequential damages under 5 U.S.C. 1221(g) to ap-peals governed by this part.

[78 FR 39547, July 2, 2013]

§ 1209.4 Definitions. (a) Personnel action means, as to indi-

viduals and agencies covered by 5 U.S.C. 2302:

(1) An appointment; (2) A promotion; (3) An adverse action under chapter

75 of title 5, United States Code or other disciplinary or corrective action;

(4) A detail, transfer, or reassign-ment;

(5) A reinstatement; (6) A restoration; (7) A reemployment; (8) A performance evaluation under

chapter 43 of title 5, United States Code;

(9) A decision concerning pay, bene-fits, or awards, or concerning edu-cation or training if the education or training may reasonably be expected to


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lead to an appointment, promotion, performance evaluation, or other per-sonnel action;

(10) A decision to order psychiatric testing or examination;

(11) The implementation or enforce-ment of any nondisclosure policy, form, or agreement; and

(12) Any other significant change in duties, responsibilities, or working conditions.

(b) Whistleblowing is the making of a protected disclosure, that is, a formal or informal communication or trans-mission, but does not include a commu-nication concerning policy decisions that lawfully exercise discretionary au-thority, unless the employee or appli-cant providing the disclosure reason-ably believes that the disclosure evi-dences any violation of any law, rule, or regulation, gross mismanagement, a gross waste of funds, an abuse of au-thority, or a substantial and specific danger to public health or safety. It does not include a disclosure that is specifically prohibited by law or re-quired by Executive order to be kept secret in the interest of national de-fense or foreign affairs, unless such in-formation is disclosed to Congress, the Special Counsel, the Inspector General of an agency, or an employee des-ignated by the head of the agency to receive it.

(c) Other protected activity means any of the following:

(1) The exercise of any appeal, com-plaint, or grievance right granted by any law, rule, or regulation with re-gard to remedying a violation of 5 U.S.C. 2302(b)(8), i.e., retaliation for whistleblowing;

(2) Testifying for or otherwise law-fully assisting any individual in the ex-ercise of any right granted by any law, rule, or regulation;

(3) Cooperating with or disclosing in-formation to Congress, the Inspector General of an agency, or the Special Counsel, in accordance with applicable provisions of law; or

(4) Refusing to obey an order that would require the individual to violate a law.

(d) Contributing factor means any dis-closure that affects an agency’s deci-sion to threaten, propose, take, or not

take a personnel action with respect to the individual making the disclosure.

(e) Clear and convincing evidence is that measure or degree of proof that produces in the mind of the trier of fact a firm belief as to the allegations sought to be established. It is a higher standard than ‘‘preponderance of the evidence’’ as defined in 5 CFR 1201.56(c)(2).

(f) Reasonable belief. An employee or applicant may be said to have a reason-able belief when a disinterested ob-server with knowledge of the essential facts known to and readily ascertain-able by the employee or applicant could reasonably conclude that the ac-tions of the Government evidence the violation, mismanagement, waste, abuse, or danger in question.

[55 FR 28592, July 12, 1990, as amended at 62 FR 17048, Apr. 9, 1997; 77 FR 62374, Oct. 12, 2012; 78 FR 39547, July 2, 2013]

Subpart B—Appeals

§ 1209.5 Time of filing.

(a) General rule. The appellant must seek corrective action from the Special Counsel before appealing to the Board unless the action being appealed is oth-erwise appealable directly to the Board and the appellant has elected a direct appeal. (See § 1209.2(d) regarding elec-tion of remedies under 5 U.S.C. 7121(g)). Where the appellant has sought correc-tive action, the time limit for filing an appeal with the Board is governed by 5 U.S.C. 1214(a)(3). Under that section, an appeal must be filed:

(1) No later than 65 days after the date of issuance of the Special Coun-sel’s written notification to the appel-lant that it was terminating its inves-tigation of the appellant’s allegations or, if the appellant shows that the Spe-cial Counsel’s notification was received more than 5 days after the date of issuance, within 60 days after the date the appellant received the Special Counsel’s notification; or,

(2) At any time after the expiration of 120 days, if the Special Counsel has not notified the appellant that it will seek corrective action on the appel-lant’s behalf within 120 days of the date of filing of the request for corrective action.


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(b) Equitable tolling; extension of filing deadline. The appellant’s deadline for filing an individual right of action ap-peal with the Board after receiving written notification from the Special Counsel that it is terminating its in-vestigation of his or her allegations is subject to the doctrine of equitable tolling, which permits the Board to ex-tend the deadline where the appellant, despite having diligently pursued his or her rights, was unable to make a time-ly filing. Examples include cases in-volving deception or in which the ap-pellant filed a defective pleading dur-ing the statutory period.

(c) Appeals after a stay request. Where an appellant has filed a request for a stay with the Board without first filing an appeal of the action, the appeal must be filed within 30 days after the date the appellant receives the order ruling on the stay request. Failure to timely file the appeal will result in the termination of any stay that has been granted unless a good reason for the delay is shown.

[55 FR 28592, July 12, 1990, as amended at 59 FR 31110, June 17, 1994; 62 FR 59993, Nov. 6, 1997; 77 FR 62374, Oct. 12, 2012]

§ 1209.6 Content of appeal; right to hearing.

(a) Content. Only an appellant, his or her designated representative, or a party properly substituted under 5 CFR 1201.35 may file an appeal. Appeals may be in any format, including letter form, but must contain the following:

(1) The nine (9) items or types of in-formation required in 5 CFR 1201.24 (a)(1) through (a)(9);

(2) Where the appellant first sought corrective action from the Special Counsel, evidence that the appeal is timely filed;

(3) The name(s) and position(s) held by the employee(s) who took the ac-tion(s), and a chronology of facts con-cerning the action(s);

(4) A description of each disclosure evidencing whistleblowing or other protected activity as defined in § 1209.4(b) of this part; and

(5) Evidence or argument that: (i) The appellant was or will be sub-

ject to a personnel action as defined in § 1209.4(a) of this part, or that the agen-cy has threatened to take or not to

take such a personnel action, together with specific indications giving rise to the appellant’s apprehensions; and

(ii) The personnel action was or will be based wholly or in part on the whis-tleblowing disclosure or other pro-tected activity, as described in § 1209.4(b) of this part.

(6) An appellant who first sought cor-rective action from the Special Counsel may satisfy the requirements of para-graphs (a)(3) through (a)(5) of this sec-tion by filing with the appeal a copy of Part 2: Reprisal For Whistleblowing of the complaint form submitted to the Office of Special Counsel (Form OSC– 11, Complaint of Possible Prohibited Per-sonnel Practice or Other Prohibited Activ-ity, Rev. 8/00), together with a copy of any continuation sheet with answers to Part 2 questions filed with the Office of Special Counsel, and any supplement to Part 2 of the original complaint filed with the Office of Special Counsel or completed by the Office of Special Counsel and furnished to the appellant.

(b) Right to hearing. An appellant gen-erally has a right to a hearing if the appeal has been timely filed and the Board has jurisdiction over the appeal.

(c) Timely request. The appellant must submit any request for a hearing with the appeal, or within any other time period the judge sets for that purpose. If the appellant does not make a timely request for a hearing, the right to a hearing is waived.

(d) Electronic filing. An appeal may be filed electronically by using the Board’s e-Appeal site (https://e-ap-peal.mspb.gov) in accordance with § 1201.14 of this chapter.

[55 FR 28592, July 12, 1990, as amended at 65 FR 67608, Nov. 13, 2000; 68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004; 77 FR 62375, Oct. 12, 2012; 78 FR 39548, July 2, 2013]

§ 1209.7 Burden and degree of proof. (a) Subject to the exception stated in

paragraph (b) of this section, in any case involving a prohibited personnel practice described in 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will order appropriate corrective ac-tion if the appellant shows by a prepon-derance of the evidence that the disclo-sure or other protected activity was a contributing factor in the personnel ac-tion that was threatened, proposed,


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taken, or not taken against the appel-lant.

(b) However, even where the appel-lant meets the burden stated in para-graph (a) of this section, the Board will not order corrective action if the agen-cy shows by clear and convincing evi-dence that it would have threatened, proposed, taken, or not taken the same personnel action in the absence of the disclosure or other protected activity.

[78 FR 39548, July 2, 2013]

Subpart C—Stay Requests

§ 1209.8 Filing a request for a stay.

(a) Time of filing. An appellant may request a stay of a personnel action al-legedly based on whistleblowing at any time after the appellant becomes eligi-ble to file an appeal with the Board under § 1209.5 of this part, but no later than the time limit set for the close of discovery in the appeal. The request may be filed prior to, simultaneous with, or after the filing of an appeal.

(b) Place of filing. Requests must be filed with the appropriate Board re-gional or field office as set forth in 5 CFR 1201.4(d).

(c) Service of stay request. A stay re-quest must be simultaneously served upon the Board’s regional or field of-fice and upon the agency’s local serv-icing personnel office or the agency’s designated representative, if any. A certificate of service stating how and when service was made must accom-pany the stay request.

(d) Method of filing. A stay request must be filed with the appropriate Board regional or field office by mail, by facsimile, by commercial or per-sonal delivery, or by electronic filing in accordance with § 1201.14 of this chapter.

[55 FR 28592, July 12, 1990, as amended at 58 FR 36345, July 7, 1993, 59 FR 65243, Dec. 19, 1994; 68 FR 59865, Oct. 20, 2003; 69 FR 57631, Sept. 27, 2004]

§ 1209.9 Content of stay request and response.

(a) Only an appellant, his or her des-ignated representative, or a party prop-erly substituted under 5 CFR 1201.35 may file a stay request. The request

may be in any format, and must con-tain the following:

(1) The name, address, and telephone number of the appellant, and the name and address of the acting agency;

(2) The name, address, and telephone number of the appellant’s representa-tive, if any;

(3) The signature of the appellant or, if the appellant has a representative, of the representative;

(4) A chronology of facts, including a description of the appellant’s disclo-sure and the action that the agency has taken or intends to take;

(5) Where the appellant first sought corrective action from the Special Counsel, evidence that the stay request is timely filed;

(6) Evidence and/or argument show-ing that:

(i) The action threatened, proposed, taken, or not taken is a personnel ac-tion, as defined in § 1209.4(a) of this part;

(ii) The action complained of was based on whistleblowing or other pro-tected activity as defined in § 1209.4(b) of this part; and

(iii) There is a substantial likelihood that the appellant will prevail on the merits of the appeal;

(7) Evidence and/or argument ad-dressing how long the stay should re-main in effect; and

(8) Any documentary evidence that supports the stay request.

(b) An appellant may provide evi-dence and/or argument addressing the question of whether a stay would im-pose extreme hardship on the agency.

(c) Agency response. (1) The agency’s response to the stay request must be received by the appropriate Board re-gional or field office within five days (excluding Saturdays, Sundays, and Federal holidays) of the date of service of the stay request on the agency.

(2) The agency’s response must con-tain the following:

(i) Evidence and/or argument address-ing whether there is a substantial like-lihood that the appellant will prevail on the merits of the appeal;

(ii) Evidence and/or argument ad-dressing whether the grant of a stay would result in extreme hardship to the agency; and


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Merit Systems Protection Board Pt. 1210

(iii) Any documentation relevant to the agency’s position on these issues.

[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994; 78 FR 39548, July 2, 2013]

§ 1209.10 Hearing and order ruling on stay request.

(a) Hearing. The judge may hold a hearing on the stay request.

(b) Order ruling on stay request. (1) The judge must rule upon the stay re-quest within 10 days (excluding Satur-days, Sundays, and Federal holidays) after the request is received by the ap-propriate Board regional or field office.

(2) The judge’s ruling on the stay re-quest must set forth the factual and legal bases for the decision. The judge must decide whether there is a sub-stantial likelihood that the appellant will prevail on the merits of the appeal, and whether the stay would result in extreme hardship to the agency.

(3) If the judge grants a stay, the order must specify the effective date and duration of the stay.

[55 FR 28592, July 12, 1990, as amended at 59 FR 65243, Dec. 19, 1994]

§ 1209.11 Duration of stay; interim compliance.

(a) Duration of stay. A stay becomes effective on the date specified in the judge’s order. The stay will remain in effect for the time period set forth in the order or until the Board issues a final decision on the appeal of the un-derlying personnel action that was stayed, or until the Board vacates or modifies the stay, whichever occurs first.

(b) Interim compliance. An agency must immediately comply with an order granting a stay request. Al-though the order granting a stay re-quest is not a final order, petitions for enforcement of such orders are gov-erned by 5 CFR part 1201, subpart F.

Subpart D—Reports on Applications for Transfers

§ 1209.12 Filing of agency reports. When an employee who has applied

for a transfer to another position in an Executive agency under 5 U.S.C. 3352 asks the agency head to review a rejec-

tion of his or her application for trans-fer, the agency head must complete the review and provide a written statement of findings to the employee and the Clerk of the Board within 30 days after receiving the request.

Subpart E—Referrals to the Special Counsel

§ 1209.13 Referral of findings to the Special Counsel.

When the Board determines in a pro-ceeding under this part that there is reason to believe that a current Fed-eral employee may have committed a prohibited personnel practice described at 5 U.S.C. 2302(b)(8) or (b)(9)(A)(i), (B), (C), or (D), the Board will refer the matter to the Special Counsel to inves-tigate and take appropriate action under 5 U.S.C. 1215.

[78 FR 39548, July 2, 2013]

PART 1210—PRACTICES AND PRO-CEDURES FOR AN APPEAL OF A REMOVAL OR TRANSFER OF A SENIOR EXECUTIVE SERVICE EM-PLOYEE BY THE SECRETARY OF THE DEPARTMENT OF VETERANS AFFAIRS

Sec. 1210.1 Authority to issue decisions under

this part. 1210.2 Definitions. 1210.3 Application of practices and proce-

dures to appeals filed under this part. 1210.4 Waiver of MSPB regulations. 1210.5 Determination of the Secretary ef-

fecting a removal or transfer; required notice of expedited procedures; initial disclosures.

1210.6 Electronic filing procedures; expe-dited filing procedures.

1210.7 Filing an appeal and a response to an appeal.

1210.8 Stay requests. 1210.9 Disclosures of information required

with initial appeal. 1210.10 Representatives. 1210.11 Initial status conference; scheduling

the hearing. 1210.12 Discovery. 1210.13 Deadlines for filing motions. 1210.14 Sanctions for failure to meet dead-

lines. 1210.15 Agency duty to assist in expedited

review. 1210.16 Intervenors and amici curiae. 1210.17 Hearings.


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1210.18 Burden of proof, standard of review, and penalty.

1210.19 Bench decisions. 1210.20 Effective date of a decision issued by

an administrative judge; continuing ju-risdiction over certain ancillary matters.

AUTHORITY: 5 U.S.C. 1204 and 7701, and 38 U.S.C. 713.


§ 1210.1 Authority to issue decisions under this part.

(a) Under 38 U.S.C. 713(d)(2)(A), as created by the Veterans Access, Choice and Accountability Act of 2014 (the Act), an employee covered by this part may appeal a removal from the civil service or a transfer to a General Schedule position based upon perform-ance or misconduct to the MSPB.

(b) MSPB administrative judges have the authority to issue a decision in an appeal covered by this part. (38 U.S.C. 713(e)(1)).

(c) The administrative judge’s au-thority under this part to issue a deci-sion terminates following the passage of 21 days after the appeal is initially filed. (38 U.S.C. 713(e)(3)).

(d) An administrative judge’s deci-sion in an appeal filed under this part is not subject to any further appeal. (38 U.S.C. 713(e)(2)).

(e) This part applies only to the Sec-retary’s authority to remove or trans-fer an employee covered under 38 U.S.C. 713 and the Board’s authority to review such decisions. This authority is in addition to the authority already provided the agency in 5 U.S.C. 3592 and the authority provided the Board under 5 U.S.C. 7541, et seq. to take an adverse action against an employee. (38 U.S.C. 713(f)).

§ 1210.2 Definitions. (a) The term employee covered by this

part means an individual career ap-pointee as that term is defined in 5 U.S.C. 3132(a)(4) or an individual who occupies an administrative or execu-tive position and is appointed under 38 U.S.C. 7306(a) or 7401(1). (38 U.S.C. 713(a) and (g)).

(b) The term administrative judge means a person experienced in hearing appeals and assigned by the Board to hold a hearing and decide an appeal

arising under this part. (38 U.S.C. 713(e)(1)).

(c) The term response file means all documents and evidence the Secretary of the Department of Veterans Affairs, or designee, used in making the deci-sion to remove or transfer an employee covered by this part. It also may in-clude any additional documents or evi-dence that the agency would present in support of the Secretary’s determina-tion in the event that an appeal is filed.

(d) The term misconduct includes ne-glect of duty, malfeasance, or failure to accept a directed reassignment or to accompany a position in a transfer of function. (38 U.S.C. 713(g)(2)).

(e) The term transfer means the transfer of an employee covered by this part to a General Schedule position. (38 U.S.C. 713(a)(1)(B)).

[79 FR 48943, Aug. 19, 2014, as amended at 79 FR 49423, Aug. 21, 2014]

§ 1210.3 Application of practices and procedures to appeals filed under this part.

(a) The following provisions of part 1201 of this chapter are inapplicable to appeals filed under this part:

(1) Section 1201.22 (inapplicable to ap-peals brought under this part pursuant to Public Law 113–146, section 707(b)(2));

(2) Section 1201.27 (class appeals are not allowed as such appeals cannot be adjudicated within 21 days);

(3) Section 1201.28 (case suspensions are not allowed because they are incon-sistent with the requirement to adju-dicate appeals under this part within 21 days);

(4) Section 1201.29 (dismissals without prejudice are not allowed because those procedures are inconsistent with the requirement to adjudicate appeals under this part within 21 days);

(5) Section 1201.56 (this regulation is not controlling; parties should refer to § 1210.18);

(6) Sections 1201.91 through 1201.93 (interlocutory appeals are not allowed because the Board lacks authority to review appeals filed under this part);

(7) Sections 1201.114 through 1201.20 (petitions for review are not allowed because the decisions in appeals filed under this part are not subject to fur-ther appeal) (38 U.S.C. 713(e)(2));


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(8) Sections 1201.121 through 1201.145 (procedures for other original jurisdic-tion cases are not relevant to appeals filed under this part);

(9) Sections 1201.152, 1201.153(b), 1201.154, 1201.155, 1201.156, 1201.157, and 1201.161 (these provisions are inappli-cable to appeals filed under 38 U.S.C. 713).

(b) Except as modified by this part, the remaining relevant provisions of part 1201 of this chapter are applicable to appeals filed under this part.

§ 1210.4 Waiver of MSPB regulations. The Board may waive any MSPB reg-

ulation in order to provide for the ex-pedited review of an appeal covered by this part. Public Law 113–146, section 707(b)(3).

§ 1210.5 Determination of the Sec-retary effecting a removal or trans-fer; required notice of expedited procedures; initial disclosures.

An agency notice of a removal or transfer pursuant to 38 U.S.C. 713 must include the following:

(a) A statement identifying the ac-tion taken based on the Secretary’s de-termination, stating the factual rea-sons for the charge(s), and statement setting forth the basis for the Sec-retary’s determination that the per-formance or misconduct warrants re-moval or transfer.

(b) Notice regarding the Board’s ex-pedited procedures applicable to an ap-peal. Such notice shall include a copy of this part and access to the remain-der of the Board’s adjudicatory regula-tions.

(c) A copy of the materials the Sec-retary relied upon to remove or trans-fer the appellant (normally referred to as the ‘‘response file’’).

(d) The name and contact informa-tion of the agency’s representative for any appeal filed with the MSPB under this part.

(e) Notice that MSPB appeals must be filed with the appropriate Board re-gional or field office. See § 1201.4(d) of this chapter.

§ 1210.6 Electronic filing procedures; expedited filing procedures.

(a) Required use of MSPB e-filing sys-tem. All parties must electronically file

all pleadings and documents listed in 5 CFR 1201.14(b) by using the MSPB’s e- filing system (e-Appeal Online). An at-tempt to file an appeal using any other method will result in rejection of the appeal and will not constitute compli-ance with the 7-day filing deadline under the Act, except in the limited circumstances described in § 1210.7(c).

(b) Expedited filing and service require-ments. All documents and pleadings not otherwise covered in paragraph (a) of this section must be filed in accord-ance with any expedited filing and service procedures ordered by the ad-ministrative judge.

(c) The parties should frequently check the Repository on e-Appeal On-line to ensure that they are aware of new pleadings, orders and submissions in a timely fashion. A party’s failure to check for updates on e-Appeal Online may lead to a denial of a request to ex-tend a deadline and/or the imposition of sanctions.

§ 1210.7 Filing an appeal and a re-sponse to an appeal.

(a) Place for filing an appeal and a re-sponse. Appeals, and responses to those appeals, must be filed with the appro-priate Board regional or field office. See § 1201.4(d) of this chapter.

(b) Time for filing an appeal and agen-cy response. An appeal of an action taken pursuant to 38 U.S.C. 713 must be filed no later than 7 days after the ef-fective date of the removal or transfer being appealed. (38 U.S.C. 713(d)(2)(B)). An agency response must be filed with-in 3 days of the filing of the appeal.

(c) Timeliness of appeals. If an appel-lant does not submit an appeal within 7 days of the effective date of the ac-tion it will be dismissed as untimely filed. This deadline cannot be extended for any reason. (38 U.S.C. 713(d)(2)(B)). However, if an appellant establishes that he or she attempted to file an ap-peal using e-Appeal Online within the 7-day deadline and that the filing was unsuccessful due to a problem with e- Appeal Online, the administrative judge may deem the filing to have been completed on the date it was at-tempted, provided the appellant took reasonable steps to immediately advise the MSPB of the failed attempt to file the appeal using e-Appeal Online. The


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21-day deadline for issuance of a deci-sion will commence on the day such an appeal was deemed to have been filed.

(d) Time limits for other appeals not brought under 38 U.S.C. 713. The time limit prescribed by paragraph (b) of this section for filing an appeal does not apply where a law or regulation es-tablishes a different time limit or where there is no applicable time limit. No time limit applies to appeals under the Uniformed Services Employment and Reemployment Rights Act (Pub. L. 103–353), as amended; see part 1208 of this chapter for the statutory filing time limits applicable to appeals under the Veterans Employment Opportuni-ties Act (Pub. L. 105–339); see part 1209 of this chapter for the statutory filing time limits applicable to whistleblower appeals and stay requests.

§ 1210.8 Stay requests.

An administrative judge may not grant a stay request in any appeal cov-ered by this part. (38 U.S.C. 713(e)(4)).

§ 1210.9 Disclosures of information re-quired with initial appeal.

An appellant must attach to his or her appeal a copy of the agency’s deci-sion notice and the response file that the agency is required to disclose to the appellant pursuant to § 1210.5(c).

§ 1210.10 Representatives.

Motions challenging the designation of a representative must be filed within 3 days of the submission of the designa-tion of representative notice.

§ 1210.11 Initial status conference; scheduling the hearing.

This regulation contains guidance for the parties concerning when initial sta-tus conferences will occur and the issues that will be addressed. In any appeal under this part the administra-tive judge retains complete discretion in deciding when to schedule the initial status conference and in selecting the issues to be addressed.

(a) Scheduling the conference. The ad-ministrative judge will schedule the initial status conference. Generally, the parties should expect that the ini-tial status conference will take place within a week after the appeal is filed.

(b) Issues likely to be addressed at the initial status conference. The parties should be prepared to discuss the fol-lowing issues at the initial status con-ference:

(1) The hearing date and anticipated length of the hearing;

(2) Settlement; (3) Discovery deadlines and disputes; (4) Admission or rejection of exhibits; (5) Witnesses to be called to testify at

the hearing; (6) Motions; and, (7) Any other issues identified by, or

that require the involvement of, the administrative judge.

(c) Additional status conferences. The administrative judge may schedule ad-ditional status conferences as nec-essary to fully develop the case for hearing.

§ 1210.12 Discovery.

Except as noted in paragraphs (a) through (d) of this section, 5 CFR 1201.71 through 1201.75 apply to appeals filed under this part.

(a) Initial disclosures. The parties must make the following initial disclo-sures prior to the initial status con-ference.

(1) Agency. The agency must provide: (i) A copy of all documents in the

possession, custody or control of the agency that the agency may use in sup-port of its claims or defenses; and,

(ii) The name and, if known, address, telephone number and email address for each individual likely to have dis-coverable information that the agency may use in support of its claims or de-fenses.

(2) Appellant. The appellant must pro-vide:

(i) A copy of all documents in the possession, custody or control of the appellant that the appellant may use in support of his or her claims or de-fenses; and,

(ii) The name and, if known, address, telephone number and email address for each individual likely to have dis-coverable information that the appel-lant may use in support of his or her claims or defenses.

(b) Time limits. The time limits set forth in § 1201.73 of this chapter shall not apply to an appeal under this part.


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The following time limits apply to ap-peals under this part:

(1) Discovery requests must be served on the opposing party prior to the ini-tial status conference.

(2) Responses to discovery requests must be served on the opposing party no later than 3 days after the initial status conference.

(3) Discovery motions, including mo-tions to compel, must be filed no later than 5 days after the initial status con-ference.

(c) Methods of discovery. Parties may use one or more of the following meth-ods of discovery provided under the Federal Rules of Civil Procedure:

(1) Written interrogatories; (2) Requests for production of docu-

ments or things for inspection or copy-ing;

(3) Requests for admissions. (d) Limits on discovery requests. Absent

approval by the administrative judge, discovery is limited as follows:

(1) Interrogatories may not exceed 10 in number, including all discrete sub-parts;

(2) The parties may not take deposi-tions; and

(3) The parties may engage in only one round of discovery.

(e) Administrative judge’s discretion to alter discovery procedures. An adminis-trative judge may alter discovery pro-cedures in order to provide for the ex-pedited review of an appeal filed under this part.

§ 1210.13 Deadlines for filing motions. (a) Motions. All non-discovery mo-

tions must be filed no later than 5 days after the initial status conference.

(b) Objections. Objections to motions must be filed no later than 2 days after the motion is filed.

(c) Administrative judge’s discretion to alter deadlines. An administrative judge may exercise discretion to alter or waive these deadlines.

§ 1210.14 Sanctions for failure to meet deadlines.

Section 1201.43 of this chapter, which allows administrative judges to impose sanctions on parties that do not com-ply with orders or do not file pleadings in a timely fashion, shall apply to any appeal covered by this part. Strict en-

forcement of deadlines will be required to meet the 21-day deadline for issuance of a decision by the adminis-trative judge.

§ 1210.15 Agency duty to assist in expe-dited review.

(a) As required by 38 U.S.C. 713(e)(6), the agency is required to provide the administrative judge such information and assistance as may be necessary to ensure that an appeal covered by this part is completed in an expedited man-ner.

(b) The agency must promptly notify the MSPB whenever it issues a Secre-tarial determination subject to appeal under this part. Such notification must include the location where the em-ployee worked, the type of action taken, and the effective date of the ac-tion. Notification should be sent to [email protected].

§ 1210.16 Intervenors and amici curiae.

Intervenors and amici curiae are per-mitted to participate in proceedings under this part as allowed in § 1201.34 of this chapter. Motions to intervene and requests to participate as an amicus curiae must be filed at the earliest pos-sible time, generally before the initial status conference. All intervenors and amici curiae must comply with the ex-pedited procedures set forth in this part and all orders issued by the ad-ministrative judge. The deadlines ap-plicable to the timely adjudication of cases under this part will not be ex-tended to accommodate intervenors or amici curiae.

§ 1210.17 Hearings.

(a) Right to a hearing. An appellant has a right to a hearing as set forth in 5 U.S.C. 7701(a).

(b) General. Hearings may be held in- person, by video or by telephone at the discretion of the administrative judge.

(c) Scheduling the hearing. The admin-istrative judge will set the hearing date during the initial status con-ference. A hearing generally will be scheduled to occur no later than 18 days after the appeal is filed.

(d) Length of hearings. Hearings gen-erally will be limited to no more than 1 day. The administrative judge, at his


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or her discretion, may allow for a longer hearing.

(e) Court reporters. The MSPB will contract for a court reporter to be present at hearings.

§ 1210.18 Burden of proof, standard of review, and penalty.

(a) Agency. Under 5 U.S.C. 7701(c)(1), and subject to exceptions stated in paragraph (c) of this section, the agen-cy (the Department of Veterans Af-fairs) bears the burden of proving that an appellant engaged in misconduct, as defined by 38 U.S.C. 713(g)(2), or poor performance, and the Secretary’s de-termination as to such misconduct or poor performance shall be sustained only if the factual reasons for the charge(s) are supported by a preponder-ance of the evidence. Proof of mis-conduct or poor performance shall cre-ate a presumption that the Secretary’s decision to remove or transfer the ap-pellant was warranted. The appellant may rebut this presumption by estab-lishing that the imposed penalty was unreasonable under the circumstances of the case. The following examples il-lustrate the application of this rule:

Example A. The Secretary determines that the appellant intentionally submitted false data on the agency’s provision of medical care and that the misconduct warrants transfer to a General Schedule position. The appellant files an appeal with the Board. Fol-lowing a hearing, the administrative judge finds that the agency proved its charge by preponderant evidence. The appellant’s transfer is presumed to be warranted, absent a showing that such a penalty was unreason-able under the circumstances of the case.

Example B. The Secretary determines that the appellant’s performance or misconduct warrants removal, but the notice of the deci-sion and the agency’s response file do not identify any factual reasons supporting the Secretary’s determination. The appellant files an appeal with the Board. The adminis-trative judge may not sustain the removal because the agency, in taking its action, pro-vided no factual reasons in support of its charge(s).

Example C. The Secretary determines that the appellant’s performance or misconduct warrants removal. The appellant files an ap-peal with the Board. During the processing of the appeal, the appellant contends that the agency unduly delayed or refused to en-gage in discovery. If the agency has ob-structed the appeal from being adjudicated in a timely fashion, the administrative judge

may impose sanctions, up to and including the drawing of adverse inferences or revers-ing the removal action. Because the adminis-trative judge finds that the agency has not unduly delayed or refused to engage in dis-covery, he declines to impose sanctions and affirms the removal.

Example D. The Secretary decides to re-move the appellant based on a charge that the appellant engaged in a minor infraction that occurred outside the workplace. The ap-pellant files an appeal with the Board. Fol-lowing a hearing, the administrative judge finds that the agency proved its charge and further finds that the appellant established that the penalty of removal was unreason-able under the circumstances of the case. The presumption that the Secretary’s deci-sion to remove was warranted is rebutted and the action is reversed.

(b) Appellant. The appellant has the burden of proof, by a preponderance of the evidence, concerning:

(1) Issues of jurisdiction; (2) The timeliness of the appeal; and (3) Affirmative defenses. (c) Affirmative defenses. Under 5 U.S.C.

7701(c)(2), the Secretary’s determina-tion may not be sustained, even where the agency met the evidentiary stand-ard stated in paragraph (a) of this sec-tion, if the appellant shows that:

(1) The agency, in rendering its deter-mination, committed harmful error in the application of its procedures;

(2) The decision was based on any prohibited personnel practice described in 5 U.S.C. 2302(b); or

(3) The determination is not other-wise in accordance with law.

(d) Penalty review. As set forth in paragraph (a) of this section, proof of the agency’s charge(s) by preponderant evidence creates a presumption that the Secretary’s decision to remove or transfer the appellant was warranted. An appellant may rebut this presump-tion by establishing that the imposed penalty was unreasonable under the circumstances of the case, in which case the action is reversed. However, the administrative judge may not miti-gate the Secretary’s decision to remove or transfer the appellant.

[79 FR 48943, Aug. 19, 2014, as amended at 79 FR 49423, Aug. 21, 2014]

§ 1210.19 Bench decisions. (a) General. The administrative judge

may issue a bench decision at the close


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of the hearing. A bench decision is ef-fective when issued.

(b) Transcription of bench decision. A transcribed copy of the decision will be prepared by the court reporter under the administrative judge’s supervision to memorialize the oral decision. The official issuance of a bench decision is the date the administrative judge an-nounces the decision and not the date the administrative judge signs the transcription.

§ 1210.20 Effective date of a decision issued by an administrative judge; continuing jurisdiction over certain ancillary matters.

(a) A decision by an administrative judge under this part will be effective upon issuance.

(b) Pursuant to 38 U.S.C. 713(e)(2), a decision by the administrative judge is not subject to further appeal.

(c) A decision by the administrative judge is nonprecedential. Such a deci-sion may be cited as persuasive author-ity only in an appeal filed pursuant to 38 U.S.C. 713(e)(2). Such a decision may not be cited in any appeal not filed pur-suant to 38 U.S.C. 713(e)(2).

(d) Following issuance of a decision by the administrative judge under this part, the MSPB retains jurisdiction over the appeal covered by this part for purposes of the following ancillary matters:

(1) Enforcement of decisions and orders. The procedures set forth in subpart F of 5 CFR part 1201 are applicable to pe-titions for enforcement filed after the administrative judge issues a decision in an appeal filed under this part; and,

(2) Attorney fees, witness fees, litigation expenses, and damages. The procedures set forth in subpart H of 5 CFR part 1201 (attorney fees, costs, expert wit-ness fees, and litigation expenses, where applicable, and damages) are ap-plicable to requests for fees and dam-ages filed after the administrative judge issues a decision in an appeal filed under this part. (5 U.S.C. 7701(g)).

PARTS 1211–1214 [RESERVED]

PART 1215—DEBT MANAGEMENT

Subpart A—Salary Offset

Sec. 1215.1 Purpose and scope. 1215.2 Definitions. 1215.3 Applicability. 1215.4 Notice requirements. 1215.5 Hearing. 1215.6 Written decision. 1215.7 Coordinating offset with another Fed-

eral agency. 1215.8 Procedures for salary offset. 1215.9 Refunds. 1215.10 Statute of limitations. 1215.11 Nonwaiver of rights. 1215.12 Interest, penalties, and administra-

tive costs.

Subpart B—Claims Collection

1215.21 Purpose and scope. 1215.22 Definitions. 1215.23 Other remedies. 1215.24 Claims involving criminal activity

or misconduct. 1215.25 Collection. 1215.26 Notices to debtor. 1215.27 Interest, penalties, and administra-

tive costs. 1215.28 Administrative offset. 1215.29 Use of credit reporting agencies. 1215.30 Collection services. 1215.31 Referral to the Department of Jus-

tice or the General Accounting Office. 1215.32 Compromise, suspension and termi-

nation. 1215.33 Omissions not a defense.

SOURCE: 54 FR 50603, Dec. 8, 1989, unless otherwise noted. Redesignated at 72 FR 56885, Oct. 5, 2007.

Subpart A—Salary Offset

AUTHORITY: 5 U.S.C. 5514, Executive Order 11809 (redesignated Executive Order 12107), and 5 CFR 550 subpart K.

§ 1215.1 Purpose and scope. (a) This regulation provides proce-

dures for the collection by administra-tive offset of a Federal employee’s sal-ary without his/her consent to satisfy certain debts owed to the Federal Gov-ernment. These regulations apply to all Federal employees who owe debts to the MSPB and to current employees of the MSPB who owe debts to other Fed-eral agencies. This regulation does not apply when the employee consents to recovery from his/her current pay ac-count.


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(b) This regulation does not apply to debts or claims arising under:

(1) The Internal Revenue Code of 1954, as amended, 26 U.S.C. 1 et seq.;

(2) The Social Security Act, 42 U.S.C. 301 et seq.;

(3) The tariff laws of the United States; or

(4) Any case where a collection of a debt by salary offset is explicitly pro-vided for or prohibited by another stat-ute.

(c) This regulation does not apply to any adjustment to pay arising out of an employee’s selection of coverage or a change in coverage under a Federal benefits program requiring periodic de-ductions from pay if the amount to be recovered was accumulated over four pay periods or less.

(d) This regulation does not preclude the compromise, suspension, or termi-nation of collection action where ap-propriate under the standards imple-menting the Federal Claims Collection Act, 31 U.S.C. 3711 et seq. 4 CFR parts 101 through 105; 5 CFR part 1215.

(e) This regulation does not preclude an employee from requesting waiver of an overpayment under 5 U.S.C. 5584, 10 U.S.C. 2774 or 32 U.S.C. 716 or in any way questioning the amount of validity of the debt by submitting a subsequent claim to the General Accounting Of-fice. This regulation does not preclude an employee from requesting a waiver pursuant to other statutory provisions applicable to the particular debt being collected.

(f) Matters not addressed in these regulations should be reviewed in ac-cordance with the Federal Claims Col-lection Standards at 4 CFR 101.1 et seq.


(a) Agency. An executive agency as is defined at 5 U.S.C. 105 including the U.S. Postal Service, the U.S. Postal Commission, a military department as defined at 5 U.S.C. 102, an agency or court in the judicial branch, an agency of the legislative branch including the U.S. Senate and House of Representa-tives and other independent establish-ments that are entities of the Federal government.

(b) Chairman. The Chairman of the MSPB or the Chairman’s designee.

(c) Creditor agency. The agency to which the debt is owed.

(d) Debt. An amount owed to the United States from sources which in-clude loans insured or guaranteed by the United States and all other amounts due the United States from fees, leases, rents, royalties, services, sales or real or personal property, over-payments, penalties, damages, inter-ests, fines, forfeitures (except those arising under the Uniform Code of Mili-tary Justice), and all other similar sources.

(e) Disposable pay. The amount that remains from an employee’s Federal pay after required deductions for social security, Federal, state or local income tax, health insurance premiums, retire-ment contributions, life insurance pre-miums, Federal employment taxes, and any other deductions that are required to be withheld by law.

(f) Hearing official. An individual re-sponsible for conducting any hearing with respect to the existence or amount of a debt claimed, and who ren-ders a decision on the basis of such hearing. A hearing official may not be under the supervision or control of the Chairman of the MSPB.

(g) Paying Agency. The agency that employs the individual who owes the debt and authorizes the payment of his/ her current pay.

(h) Salary offset. An administrative offset to collect a debt pursuant to 5 U.S.C. 5514 by deduction(s) at one or more officially established pay inter-vals from the current pay account of an employee without his/her consent.

§ 1215.3 Applicability. (a) These regulations are to be fol-

lowed when: (1) The MSPB is owed a debt by an

individual currently employed by an-other Federal agency;

(2) The MSPB is owed a debt by an individual who is a current employee of the MSPB; or

(3) The MSPB employs an individual who owes a debt to another Federal agency.

§ 1215.4 Notice requirements. (a) Deductions shall not be made un-

less the employee is provided with written notice signed by the Chairman


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of the debt at least 30 days before sal-ary offset commences.

(b) The written notice shall contain: (1) A statement that the debt is owed

and an explanation of its nature, and amount;

(2) The agency’s intention to collect the debt by deducting from the employ-ee’s current disposable pay account;

(3) The amount, frequency proposed beginning date, and duration of the in-tended deduction(s);

(4) An explanation of interest, pen-alties, and administrative charges, in-cluding a statement that such charges will be assessed unless excused in ac-cordance with the Federal Claims Col-lections Standards at 4 CFR 101.1 et seq.;

(5) The employee’s right to inspect, request, or receive a copy of govern-ment records relating to the debt;

(6) The opportunity to establish a written schedule for the voluntary re-payment of the debt;

(7) The right to a hearing conducted by an impartial hearing official;

(8) The methods and time period for petitioning for hearings;

(9) A statement that the timely filing of a petition for a hearing will stay the commencement of collection pro-ceedings;

(10) A statement that a final decision on the hearing will be issued not later than 60 days after the filing of the peti-tion requesting the hearing unless the employee requests and the hearing offi-cial grants a delay in the proceedings;

(11) A statement that knowingly false or frivolous statements, represen-tations, or evidence may subject the employee to appropriate disciplinary procedures;

(12) A statement of other rights and remedies available to the employee under statutes or regulations gov-erning the program for which the col-lection is being made; and

(13) Unless there are contractual or statutory provisions to the contrary, a statement that amounts paid on or de-ducted for the debt which are later waived or found not owed to the United States will be promptly refunded to the employee.

§ 1215.5 Hearing. (a) Request for hearing. (1) An em-

ployee must file a petition for a hear-ing in accordance with the instructions outlined in the agency’s notice to off-set.

(2) A hearing may be requested by fil-ing a written petition addressed to the Chairman of the MSPB stating why the employee disputes the existence or amount of the debt. The petition for a hearing must be received by the Chair-man no later than fifteen (15) calendar days after the date of the notice to off-set unless the employee can show good cause for failing to meet the deadline date.

(b) Hearing procedures. (1) The hearing will be presided over by an impartial hearing official.

(2) The hearing shall conform to pro-cedures contained in the Federal Claims Collection Standards 4 CFR 102.3(c). The burden shall be on the em-ployee to demonstrate that the exist-ence or the amount of the debt is in error.

§ 1215.6 Written decision. (a) The hearing official shall issue a

written opinion no later than 60 days after the hearing.

(b) The written opinion will include: A statement of the facts presented to demonstrate the nature and origin of the alleged debt; the hearing official’s analysis, findings and conclusions; the amount and validity of the debt, and the repayment schedule.

§ 1215.7 Coordinating offset with an-other Federal agency.

(a) The MSPB as the creditor agency. (1) When the Chairman determines that an employee of a Federal agency owes a delinquent debt to the MSPB, the Chairman shall as appropriate:

(i) Arrange for a hearing upon the proper petitioning by the employee;

(ii) Certify in writing that the em-ployee owes the debt, the amount and basis of the debt, the date on which payment is due, the date the Govern-ment’s right to collect the debt ac-crued, and that MSPB regulations for salary offset have been approved by the Office of Personnel Management;

(iii) Advise the paying agency of the amount or percentage of disposable pay


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to be collected in each installment, if collection is to be made in install-ments;

(iv) Advise the paying agency of the actions taken under 5 U.S.C. 5514(b) and provide the dates on which action was taken unless the employee has consented to salary offset in writing or signed a statement acknowledging re-ceipt of procedures required by law. The written consent or acknowledg-ment must be sent to the paying agen-cy;

(v) If the employee is in the process of separating, MSPB must submit its debt claim to the paying agency as pro-vided in this part. The paying agency must certify any amounts already col-lected, notify the employee, and send a copy of the certification and notice of the employee’s separation to the cred-itor agency. If the paying agency is aware that the employee is entitled to Civil Service Retirement and Dis-ability Fund or similar payments, it must certify to the agency responsible for making such payments the amount of the debt and that the provisions of this part have been followed; and

(vi) If the employee has already sepa-rated and all payments due from the paying agency have been paid, the Chairman may request unless other-wise prohibited, that money payable to the employee from the Civil Service Retirement and Disability Fund or other similar funds be collected by ad-ministrative offset.

(b) MSPB as the paying agency. (1) Upon receipt of a properly certified debt claim from another agency, de-ductions will be scheduled to begin at the next established pay interval. The employee must receive written notice that the MSPB has received a certified debt claim from the creditor agency, the amount of the debt, the date salary offset will begin, and the amount of the deduction(s). The MSPB shall not re-view the merits of the creditor agen-cy’s determination of the validity or the amount of the certified claim.

(2) If the employee transfers to an-other agency after the creditor agency has submitted its debt claim to the MSPB and before the debt is collected completely, the MSPB must certify the total amount collected. One copy of the certification must be furnished to the

employee. A copy must be furnished the creditor agency with notice of the employee’s transfer.

§ 1215.8 Procedures for salary offset.

(a) Deductions to liquidate an em-ployee’s debt will be by the method and in the amount stated in the Chairman’s notice of intention to offset as provided in § 1215.4. Debts will be collected in one lump sum where possible. If the employee is financially unable to pay in one lump sum, collection must be made in installments.

(b) Debts will be collected by deduc-tion at officially established pay inter-vals from an employee’s current pay account unless alternative arrange-ments for repayment are made.

(c) Installment deductions will be made over a period not greater than the anticipated period of employment. The size of installment deductions must bear a reasonable relationship to the size of the debt and the employee’s ability to pay. The deduction for the pay intervals for any period must not exceed 15 percent of disposable pay un-less the employee has agreed in writing to a deduction of a greater amount.

(d) Unliquidated debts may be offset against any financial payment due to a separated employee including but not limited to final salary payment or leave in accordance with 31 U.S.C. 3716.

§ 1215.9 Refunds.

(a) The MSPB will refund promptly any amounts deducted to satisfy debts owed to the MSPB when the debt is waived, found not owed to the MSPB, or when directed by an administrative or judicial order.

(b) The creditor agency will promptly return any amounts deducted by MSPB to satisfy debts owed to the creditor agency when the debt is waived, found not owed, or when directed by an ad-ministrative or judicial order.

(c) Unless required by law, refunds under this subsection shall not bear in-terest.

§ 1215.10 Statute of limitations.

If a debt has been outstanding for more than 10 years after the agency’s right to collect the debt first accrued, the agency may not collect by salary


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offset unless facts material to the Gov-ernment’s right to collect were not known and could not reasonably have been known by the official or officials who were charged with the responsi-bility for discovery and collection of such debts.

§ 1215.11 Nonwaiver of rights. An employee’s involuntary payment

of all or any part of a debt collected under these regulations will not be construed as a waiver of any rights that employee may have under 5 U.S.C. 5514 or any other provision of contract law unless there are statutes or con-tract(s) to the contrary.

§ 1215.12 Interest, penalties, and ad-ministrative costs.

Charges may be assessed for interest, penalties, and administrative costs in accordance with the Federal Claims Collection Standards, 4 CFR 102.13. Dated: July 24, 1987.

Subpart B—Claims Collection

AUTHORITY: The authority for this part is the Federal Claims Collection Act of 1966, as amended, 31 U.S.C. 3711 and 3716–3719; the Federal Claims Collection Standards at 4 CFR parts 101–105, as amended by 49 FR 8889, 5 U.S.C. 552a, and Office of Management and Budget Circular A–129.

§ 1215.21 Purpose and scope. This part prescribes standards and

procedures for officers and employees of the MSPB who are responsible for the collection and disposition of debts owed to the United States. The activi-ties covered include: Collecting claims in any amount; compromising claims, or suspending or terminating the col-lection of claims that do not exceed $20,000 exclusive of interest and charges; and referring debts that can-not be disposed of by the MSPB to the Department of Justice or to the Gen-eral Accounting Office for further ad-ministrative action or litigation.

§ 1215.22 Definitions. (a) Claim or debt. An amount or prop-

erty owed to the United States which includes, but is not limited to: Over-payments to program beneficiaries; overpayments to contractors and

grantees, including overpayments aris-ing from audit disallowances; excessive cash advances to grantees and contrac-tors; and civil penalties and assess-ments. A debt is overdue or delinquent if it is not paid by the due date speci-fied in the initial notice of the debt (see § 1215.26) or if the debtor fails to satisfy his or her obligation under a re-payment agreement.

(b) Debtor. An individual, organiza-tion, group, association, partnership, or corporation indebted to the United States, or the person or entity with legal responsibility for assuming the debtor’s obligation.

(c) MSPB. The Merit Systems Protec-tion Board.

(d) Administrative offset. Satisfying a debt by withholding money payable by the United States to or held by the United States for a debtor.

§ 1215.23 Other remedies.

The remedies and sanctions available to the MSPB under this part are not intended to be exclusive. The Chairman of the MSPB or his designee may im-pose other appropriate sanctions upon a debtor for prolonged or repeated fail-ure to pay a debt. For example, the Chairman or his designee may place the debtor’s name on a list of debarred, suspended, or ineligible contractors. In such cases the debtor will be advised of the MSPB’s action.

§ 1215.24 Claims involving criminal ac-tivity or misconduct.

(a) A debtor whose indebtedness in-volves criminal activity such as fraud, embezzlement, theft, or misuse of gov-ernment funds or property is subject to punishment by fine or imprisonment as well as to a civil claim by the United States for compensation for the mis-appropriated funds. The MSPB will refer these cases to the appropriate law enforcement agency for prosecution.

(b) Debts involving fraud, false claims, or misrepresentation shall not be compromised, terminated, sus-pended, or otherwise disposed of under this rule. Only the Department of Jus-tice is authorized to compromise, ter-minate, suspend, or otherwise dispose of such debts.


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5 CFR Ch. II (1–1–16 Edition) § 1215.25

§ 1215.25 Collection.

(a) The MSPB will take aggressive action to collect debts and reduce de-linquencies. Collection efforts shall in-clude sending to the debtor’s last known address a total of three progres-sively stronger written demands for payment at not more than 30 day inter-vals. When necessary to protect the Government’s interest, written demand may be preceded by other appropriate action, including immediate referral for litigation. Other contact with the debtor or his or her representative or guarantor by telephone, in person and/ or in writing may be appropriate to de-mand prompt payment, to discuss the debtor’s position regarding the exist-ence, amount and repayment of the debt, and to inform the debtor of his or her rights and effect of nonpayment or delayed payment. A debtor who dis-putes a debt must promptly provide available supporting evidence.

(b) If a debtor is involved in insol-vency proceedings, the debt will be re-ferred to the appropriate United States Attorney to file a claim. The United States may have a priority over other creditors under 31 U.S.C. 3713.

§ 1215.26 Notices to debtor.

The first written demand for pay-ment must inform the debtor of the fol-lowing:

(a) The amount and nature of the debt;

(b) The date payment is due, which will generally be 30 days from the date the notice was mailed;

(c) The assessment of interest under § 1215.27 from the date the notice was mailed if payment is not received with-in the 30 days;

(d) The right to dispute the debt; (e) The office, address and telephone

number that the debtor should contact to discuss repayment and reconsider-ation of the debt; and

(f) The sanctions available to the MSPB to collect a delinquent debt in-cluding, but not limited to, referral of the debt to a credit reporting agency, a private collection bureau, or the De-partment of Justice for litigation.

§ 1215.27 Interest, penalties, and ad-ministrative costs.

(a) Interest will accrue on all debts from the date when the first notice of the debt and the interest requirement is mailed to the last known address or hand-delivered to the debtor if the debt is not paid within 30 days from the date the first notice was mailed. The MSPB will charge an annual rate of interest that is equal to the average investment rate for the Treasury tax and loan ac-counts on September 30 of each year, rounded to the nearest whole per cen-tum. This rate, which represents the current value of funds to the United States Treasury, may be revised quar-terly by the Secretary of the Treasury and is published by the Secretary of the Treasury annually or quarterly in the FEDERAL REGISTER and the Treas-ury Financial Manual Bulletins.

(b) The rate of interest initially as-sessed will remain fixed for the dura-tion of the indebtedness, except that if a debtor defaults on a repayment agreement interest may be set at the Treasury rate in effect on the date a new agreement is executed.

(c) The MSPB shall charge debtors for administrative costs incurred in handling overdue debts.

(d) Interest will not be charged on ad-ministrative costs.

(e) The MSPB shall assess a penalty charge, not to exceed 6 percent per year on debts which have been delin-quent for more than 90 days. This change shall accrue from the date that the debt became delinquent.

(f) The Chairman or his designee may waive in whole or in part the collection of interest and administrative and pen-alty charges if determined that collec-tion would be against equity or not in the best interests of the United States. The MSPB shall waive the collection of interest on the debt or any part of the debt which is paid within 30 days after the date on which interest began to ac-crue.

§ 1215.28 Administrative offset.

(a) The MSPB may collect debts owed by administrative offset if:

(1) The debt is certain in amount;


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(2) Efforts to obtain direct payment have been, or would most likely be un-successful, or the MSPB and the debtor agree to the offset;

(3) Offset is cost effective or has sig-nificant deterrent value; and

(4) Offset is best suited to further and protect the Government’s interest.

(b) The MSPB may offset a debt owed to another Federal agency from amounts due or payable by the MSPB to the debtor or request another Fed-eral agency to offset a debt owed to the MSPB;

(c) Prior to initiating administrative offset, the MSPB will send the debtor written notice of the following:

(1) The nature and amount of the debt and the agency’s intention to col-lect the debt by offset 30 days from the date the notice was mailed if neither payment nor a satisfactory response is received by that date;

(2) The debtor’s right to an oppor-tunity to submit a good faith alter-native repayment schedule to inspect and copy agency records pertaining to the debt, to request a review of the de-termination of indebtedness; and to enter into a written agreement to repay the debt; and

(3) The applicable interest. (d) The MSPB may effect an adminis-

trative offset against a payment to be made to a debtor prior to the comple-tion of the procedures required by paragraph (c) of this section if:

(1) Failure of offset would substan-tially prejudice the Government’s abil-ity to collect the debt; and

(2) The time before the payment is to be made does not reasonably permit completion of those procedures.

§ 1215.29 Use of credit reporting agen-cies.

(a) The MSPB may report delinquent accounts to credit reporting agencies consistent with the notice require-ments contained in the § 1215.26. Indi-vidual debtors must be given at least 60 days written notice that the debt is overdue and will be reported to a credit reporting agency.

(b) Debts may be reported to con-sumer or commercial reporting agen-cies. Consumer reporting agencies are defined in 31 U.S.C. 3701(a)(3) pursuant to 5 U.S.C. 552a(b)(12) and 31 U.S.C.

3711(f). The MSPB may disclose only an individual’s name, address, Social Se-curity number, and the nature, amount, status and history of the debt and the program under which the claim arose.

§ 1215.30 Collection services. (a) The MSPB may contract for col-

lection services to recover outstanding debts. The MSPB may refer delinquent debts to private collection agencies listed on the schedule compiled by the General Services Administration. In such contracts, the MSPB will retain the authority to resolve disputes, com-promise claims, terminate or suspend collection, and refer the matter to the Department of Justice or the General Accounting Office.

(b) The contractor shall be subject to the disclosure provisions of the Privacy Act of 1974, as amended (5 U.S.C. 552a(m)), and to applicable Federal and state laws and regulations pertaining to debt collection practices, including the Fair Debt Collection Practices Act, 15 U.S.C. 1692. The contractor shall be strictly accountable for all amounts collected.

(c) The contractor shall be required to provide to the MSPB any data con-tained in its files relating to the debt account upon agency request or upon returning an account to the MSPB for referral to the Department of Justice for litigation.

§ 1215.31 Referral to the Department of Justice or the General Account-ing Office.

Debts over $600 but less than $100,000 which the MSPB determines can nei-ther be collected nor otherwise dis-posed of will be referred for litigation to the United States Attorney in whose judicial district the debtor is located. Claims for amounts exceeding $100,000 shall be referred for litigation to the Commercial Litigation Branch, Civil Division of the Department of Justice.

§ 1215.32 Compromise, suspension and termination.

(a) The Chairman of the MSPB or his designee may compromise, suspend or terminate the collection of debts where the outstanding principal is not great-er than $20,000. MSPB procedures for


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5 CFR Ch. II (1–1–16 Edition) § 1215.33

writing off outstanding accounts are available to the public.

(b) The Chairman of the MSPB may compromise, suspend or terminate col-lection of debts where the outstanding principal is greater than $20,000 only with the approval of, or by referral to the United States Attorney or the De-partment of Justice.

(c) The Chairman of the MSPB will refer to the General Accounting Office (GAO) debts arising from GAO audit exceptions.

§ 1215.33 Omissions not a defense. Failure to comply with any provi-

sions of this rule may not serve as a de-fense to any debtor.

PART 1216—TESTIMONY BY MSPB EMPLOYEES RELATING TO OFFI-CIAL INFORMATION AND PRO-DUCTION OF OFFICIAL RECORDS IN LEGAL PROCEEDINGS


Sec. 1216.101 Scope and purpose. 1216.102 Applicability. 1216.103 Definitions.

Subpart B—Demands or Requests for Testimony and Production of Documents

1216.201 General prohibition. 1216.202 Factors the MSPB will consider. 1216.203 Filing requirements for litigants

seeking documents or testimony. 1216.204 Service of requests or demands. 1216.205 Processing requests or demands. 1216.206 Final determination. 1216.207 Restrictions that apply to testi-

mony. 1216.208 Restrictions that apply to released

records. 1216.209 Procedure when a decision is not

made prior to the time a response is re-quired.

1216.210 Procedure in the event of an ad-verse ruling.

Subpart C—Schedule of Fees

1216.301 Fees.

Subpart D—Penalties

1216.401 Penalties.

AUTHORITY: 5 U.S.C. 1204(h); 31 U.S.C. 9701.

SOURCE: 71 FR 17967, Apr. 10, 2006, unless otherwise noted.

Subpart A—General Provisions § 1216.101 Scope and purpose.

(a) This part establishes policy, as-signs responsibilities and prescribes procedures with respect to:

(1) The production or disclosure of of-ficial information or records by MSPB employees, advisors, and consultants; and

(2) The testimony of current and former MSPB employees, advisors, and consultants relating to official infor-mation, official duties, or the MSPB’s record, in connection with federal or state litigation in which the MSPB is not a party.

(b) The MSPB intends this part to: (1) Conserve the time of MSPB em-

ployees for conducting official busi-ness;

(2) Minimize the involvement of MSPB employees in issues unrelated to MSPB’s mission;

(3) Maintain the impartiality of MSPB employees in disputes between private litigants; and

(4) Protect sensitive, confidential in-formation and the deliberative proc-esses of the MSPB.

(c) In providing for these require-ments, the MSPB does not waive the sovereign immunity of the United States.

(d) This part provides guidance for the internal operations of MSPB. It does not create any right or benefit, substantive or procedural, that a party may rely upon in any legal proceeding against the United States.

§ 1216.102 Applicability. This part applies to demands and re-

quests to current and former employ-ees, advisors, and consultants for fac-tual or expert testimony relating to of-ficial information or official duties or for production of official records or in-formation, in legal proceedings in which the MSPB is not a named party. This part does not apply to:

(a) Demands upon or requests for an MSPB employee to testify as to facts or events that are unrelated to his or her official duties or that are unrelated to the functions of the MSPB;

(b) Demands upon or requests for a former MSPB employee to testify as to matters in which the former employee


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was not directly or materially involved while at the MSPB;

(c) Requests for the release of records under the Freedom of Information Act, 5 U.S.C. 552, or the Privacy Act, 5 U.S.C. 552a; or

(d) Congressional demands and re-quests for testimony, records or infor-mation.

§ 1216.103 Definitions. The following definitions apply to

this part. (a) Demand means an order, sub-

poena, or other command of a court or other competent authority for the pro-duction, disclosure, or release of records or for the appearance and testi-mony of an MSPB employee in a legal proceeding.

(b) General Counsel means the Gen-eral Counsel of the MSPB or a person to whom the General Counsel has dele-gated authority under this part.

(c) Legal proceeding means any mat-ter before a court of law, administra-tive board or tribunal, commission, ad-ministrative law judge, hearing officer or other body that conducts a legal or administrative proceeding. Legal pro-ceeding includes all phases of litiga-tion.

(d) MSPB means the Merit Systems Protection Board.

(e) MSPB employee or employee means: (1)(i) Any current or former employee

of the MSPB; (ii) Any other individual hired

through contractual agreement by or on behalf of the MSPB or who has per-formed or is performing services under such an agreement for the MSPB; and

(iii) Any individual who served or is serving in any consulting or advisory capacity to the MSPB, whether formal or informal.

(2) This definition does not include persons who are no longer employed by the MSPB and who agree to testify about general matters, matters avail-able to the public, or matters with which they had no specific involvement or responsibility during their employ-ment with the MSPB.

(f) Records or official records and infor-mation all information in the custody and control of the MSPB, relating to information in the custody and control of the MSPB, or acquired by an MSPB

employee in the performance of his or her official duties or because of his or her official status, while the individual was employee by or on behalf of the MSPB.

(g) Request means any informal re-quest, by whatever method, for the pro-duction of records and information or for testimony which has not been or-dered by a court of other competent authority.

(h) Testimony means any written or oral statements, including depositions, answers to interrogatories, affidavits, declarations, interviews, and state-ments made by an individual in con-nection with a legal proceeding.

Subpart B—Demands or Requests for Testimony and Production of Documents

§ 1216.201 General prohibition. No employee may produce official

records and information or provide any testimony relating to official informa-tion in response to a demand or request without the prior, written approval of the General Counsel.

§ 1216.202 Factors the MSPB will con-sider.

The General Counsel, in his or her sole discretion, may grant an employee permission to testify on matters relat-ing to official information, or produce official records and information, in re-sponse to a demand or request. Among the relevant factors that the General Counsel may consider in making this decision are whether:

(a) The purposes of this part are met; (b) Allowing such testimony or pro-

duction of records would be necessary to prevent a miscarriage of justice;

(c) Allowing such testimony or pro-duction of records would assist or hinder the MSPB in performing its statutory duties;

(d) Allowing such testimony or pro-duction of records would be in the best interest of the MSPB or the United States;

(e) The records or testimony can be obtained from other sources;

(f) The demand or request is unduly burdensome or otherwise inappropriate under the applicable rules of discovery or the rule of procedure governing the


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5 CFR Ch. II (1–1–16 Edition) § 1216.203

case or mater in which the demand or request arose;

(g) Disclosure would violate a stat-ute, Executive Order or regulation;

(h) Disclosure would reveal confiden-tial, sensitive, or privileged informa-tion, trade secrets or similar, confiden-tial or financial information, otherwise protected information, or information which would otherwise be inappro-priate for release;

(i) Disclosure would impede or inter-fere with an ongoing law enforcement investigation or proceeding, or com-promise constitutional rights or na-tional security interests;

(j) Disclosure would result in the MSPB appearing to favor one litigant over another;

(k) Whether the request was served before the demand;

(l) A substantial Government inter-est is implicated;

(m) The demand or request is within the authority of the party making it; and

(n) The demand or request is suffi-ciently specific to be answered.

§ 1216.203 Filing requirements for liti-gants seeking documents or testi-mony.

A litigant must comply with the fol-lowing requirements when filing a re-quest for official records and informa-tion or testimony under this part. A re-quest should be filed before a demand.

(a) The request must be in writing and must be submitted to the Clerk of the Board who will immediately for-ward the request to the General Coun-sel.

(b) The written request must contain the following information:

(1) The caption of the legal pro-ceeding, docket number, and name and address of the court or other authority involved;

(2) A copy of the complaint or equiva-lent document setting forth the asser-tions in the case and any other plead-ing or document necessary to show rel-evance;

(3) A list of categories of records sought, a detailed description of how the information sought is relevant to the issues in the legal proceeding, and a specific description of the substance of the testimony or records sought;

(4) A statement as to how the need for the information outweighs any need to maintain the confidentiality of the information and outweighs the burden on the MSPB to produce the records or provide testimony;

(5) A statement indicating that the information sought is not available from another source, from other per-sons or entities, or from the testimony of someone other than an MSPB em-ployee, such as a retained expert;

(6) If testimony is requested, the in-tended use of the testimony, and a showing that no document could be provided and used in lieu of testimony;

(7) A description of all prior deci-sions, orders, or pending motions in the case that bear upon the relevance of the requested records or testimony;

(8) The name, address, and telephone number of counsel to each party in the case; and

(9) An estimate of the amount of time that the requester and other par-ties will require for each MSPB em-ployee for time spent by the employee to prepare for testimony, in travel, and for attendance in the legal proceeding.

(c) The MSPB reserves the right to require additional information to com-plete the request where appropriate.

(d) The request should be submitted at least 30 days before the date that records or testimony is required. Re-quests submitted in less than 30 days before records or testimony is required must be accompanied by a written ex-planation stating the reasons for the late request and the reasons for expe-dited processing.

(e) Failure to cooperate in good faith to enable the General Counsel to make an informed decision may serve as the basis for a determination not to com-ply with the request.

(f) The request should state that the requester will provide a copy of the MSPB employee’s statement free of charge and that the requester will per-mit the MSPB to have a representative present during the employee’s testi-mony.

§ 1216.204 Service of requests or de-mands.

Requests or demands for official records or information or testimony under this subpart must be served on


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the Clerk of the Board, U.S. Merit Sys-tems Protection Board, 1615 M Street, NW., Washington, DC 20419–0002 by mail, fax, or e-mail and clearly marked ‘‘Part 1216 Request for Testimony or Official Records in Legal Proceedings.’’ The request or demand will be imme-diately forwarded to the General Coun-sel for processing.

§ 1216.205 Processing requests or de-mands.

(a) After receiving service of a re-quest or demand for testimony, the General Counsel will review the re-quest and, in accordance with the pro-visions of this subpart, determine whether, or under what conditions, to authorize the employee to testify on matters relating to official informa-tion and/or produce official records and information.

(b) Absent exigent circumstances, the MSPB will issue a determination with-in 30 days from the date the request is received.

(c) The General Counsel may grant a waiver of any procedure described by this subpart where a waiver is consid-ered necessary to promote a significant interest of the MSPB or the United States, or for other good cause.

(d) Certification (authentication) of copies of records. The MSPB may certify that records are true copies in order to facilitate their use as evidence. If a re-quester seeks certification, the re-quester must request certified copies from the MSPB at least 30 days before the date they will be needed. The re-quest should be sent to the Clerk of the Board.

§ 1216.206 Final determination. The General Counsel makes the final

determination on demands to requests to employees for production of official records and information or testimony in litigation in which the MSPB is not a party. All final determinations are within the sole discretion of the Gen-eral Counsel. The General Counsel will notify the requester and, when appro-priate, the court of other competent authority of the final determination, the reasons for the grant or denial of the request, and any conditions that the General Counsel may impose on the release of records or information, or on

the testimony of an MSPB employee. The General Counsel’s decision ex-hausts administrative remedies for dis-covery of the information.

§ 1216.207 Restrictions that apply to testimony.

(a) The General Counsel may impose conditions or restrictions on the testi-mony of MSPB employees including, for example:

(1) Limiting the areas of testimony; (2) Requiring the requester and other

parties to the legal proceeding to agree that the transcript of the testimony will be kept under seal;

(3) Requiring that the transcript will be used or made available only in the particular legal proceeding for which testimony was requested. The General Counsel may also require a copy of the transcript of testimony at the request-er’s expense.

(b) The MSPB may offer the employ-ee’s written declaration in lieu of testi-mony.

(c) If authorized to testify pursuant to this part, an employee may testify as to facts within his or her personal knowledge, but, unless specifically au-thorized to do so by the General Coun-sel, the employee shall not;

(1) Disclose confidential or privileged information; or

(2) For a current MSPB employee, testify as an expert or opinion witness with regard to any matter arising out of the employee’s official duties or the functions of the MSPB unless testi-mony is being given on behalf of the United States (see also 5 CFR 2635.805).

(d) The scheduling of an employee’s testimony, including the amount of time that the employee will be made available for testimony, will be subject to the MSPB’s approval.

§ 1216.208 Restrictions that apply to released records.

(a) The General Counsel may impose conditions or restrictions on the re-lease of official records and informa-tion, including the requirement that parties to the proceeding obtain a pro-tective order or execute a confiden-tiality agreement to limit access and any further disclosure. The terms of the protective order or of a confiden-tiality agreement must be acceptable


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5 CFR Ch. II (1–1–16 Edition) § 1216.209

to the General Counsel. In cases where protective orders or confidentiality agreements have already been exe-cuted, the MSPB may condition the re-lease of official records and informa-tion on an amendment to the existing protective order or confidentiality agreement.

(b) If the General Counsel so deter-mines, original MSPB records may be presented for examination in response to a request, but they may not be pre-sented as evidence or otherwise used in a manner by which they could lose their identity as official MSPB records, nor may they be marked or altered. In lieu of the original records, certified copies may be presented for evi-dentiary purposes.

§ 1216.209 Procedure when a decision is not made prior to the time a re-sponse is required.

If a response to a demand or request is required before the General Counsel can make the determination referred to in § 1216.206, the General Counsel, when necessary, will provide the court or other competent authority with a copy of this part, inform the court or other competent authority that the re-quest is being reviewed, provide an es-timate as to when a decision will be made, and seek a stay of the demand or request pending a final determination.

§ 1216.210 Procedure in the event of an adverse ruling.

If the court or other competent au-thority fails to stay a demand or re-quest, the employee upon whom the de-mand or request is made, unless other-wise advised by the General Counsel, will appear, if necessary, at the stated time and place, produce a copy of this part, state that the employee has been advised by counsel not to provide the requested testimony or produce docu-ments, and respectfully decline to com-ply with the demand or request, citing United States ex rel. Touchy v. Ragen, 340 U.S. 462 (1951).

Subpart C—Schedule of Fees § 1216.301 Fees.

(a) Generally. The General Counsel may condition the production of records or appearance for testimony

upon advance payment of a reasonable estimate of the costs to the MSPB.

(b) Fees for records. Fees for producing records will include fees for searching, reviewing, and duplicating records, costs of attorney time spent in review-ing the request, and expenses generated by materials and equipment used to search for, produce, and copy the re-sponsive information. Costs for em-ployee time will be calculated on the basis of the hourly pay of the employee (including all pay, allowances, and ben-efits). Fees for duplication will be the same as those charged by the MSPB in its Freedom of Information Act regula-tions at 5 CFR part 1204.

(c) Witness fees. Fees for attendance by a witness will include fees, expenses, and allowances prescribed by the court’s rules. If no such fees are pre-scribed, witness fees will be determined based upon the rule of the Federal dis-trict closest to the location where the witness will appear and on 28 U.S.C. 1821, as applicable. Such fees will in-clude cost of time spent by the witness to prepare for testimony, in travel and for attendance in the legal proceeding, plus travel costs.

(d) Payment of fees. A requester must pay witness fees for current MSPB em-ployees and any record certification fees by submitting to the Clerk of the Board a check or money order for the appropriate amount made payable to the Treasury of the United States. In the case of testimony of former MSPB employees, the request must pay appli-cable fees directly to the former MSPB employee in accordance with 28 U.S.C. 1821 or other applicable statutes.

(e) Waiver or reduction of fees. The General Counsel, in his or her sole dis-cretion, may, upon a showing of rea-sonable cause, waive or reduce any fees in connection with the testimony, pro-duction, or certification of records.

(f) De minimis fees. Fees will not be assessed if the total charge would be $10.00 or less.

Subpart D—Penalties § 1216.401 Penalties.

(a) An employee who discloses offi-cial records or information or gives testimony relating to official informa-tion, except as expressly authorized by


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the MSPB, or as ordered by a Federal court after the MSPB has had the op-portunity to be heard, may face the penalties provided in 18 U.S.C. 641 and other applicable laws. Additionally, former MSPB employees are subject to the restrictions and penalties of 18 U.S.C. 207 and 216.

(b) A current MSPB employee who testifies or produces official records and information in violation of this part shall be subject to disciplinary ac-tion.

PARTS 1217–1299 [RESERVED]


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